American Insurance v. Crawford, 70 So. 579

American Insurance v. Crawford

70 So. 579 | Miss. | 1915

Potter, J.,

delivered the opinion of the court.

J. W. Crawford, appellee here, was plaintiff in the court below, and filed his suit against the American Insurance Company, the appellant, in the circuit court of Leflore county.

The suit was brought on a fire insurance policy issued by the appellant for three hundred dollars on certain *499.household furniture owned by the appellee and situated in the city of Greenwood, which furniture it was alleged in the declaration was destroyed by fire, and that the plaintiff suffered loss in the full sum of the policy, three hundred dollars.

The defendant pleaded the general issue and set up in the notice thereunder that by the terms of the contract sued on there was a warranty binding on the plaintiff in the policy issued by defendant, as follows:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”

And the defendant offered in this pleading to show on the trial of the ease that, without any permission by agreement indorsed on the contract or otherwise, the plaintiff, subsequent to the issuance of the contract sued on, caused to be issued or accepted and permitted the issuance of a policy covering identically the same matter with another company for the sum of three hundred dollars, or did knowingly permit such policy after-wards issued to remain in existence up to the time of the fire.

To the notice of affirmative matter under the general issue, the plaintiff filed a replication in effect admitting that the additional policy for three hundred dollars mentioned in the notice under the general issue was issued, but denying that it was issued with his knowledge or consent ; denying that he ever had knowledge of the existence •of the policy; denying that it was ever in his actual or constructive possession; and denying that he ever paid or promised to pay any premium for the issuance of the policy; and alleging that as soon as he was notified that such policy had been issued that he notified the company having issued it through its agent that he had no claim whatever on account of it, as the same was issued without his knowledge or consent.

*500The testimony in the case is conflicting. Mr. Crawford testified in his own behalf that the second policy on his household furniture was not issued at his request; that he knew nothing about it until after the fire; that he had never promised to pay the premium thereon; and that if the policy was mailed to him that he never received it. The agent for the insurance company on the other hand testified that the policy was issued at the request, of Mr.' Crawford, and that he promised to pay for it, and. in fact on one occasion handed him a ten dollar bill in payment of the premium on the policy, which was not. received because the proper change could not then be made. The only other testimony in the case is of one witness who testified that Crawford kept certain papers in the safe of the compress company with which the witness was employed as a bookkeeper, and .that this policy was among, the papers. He did not know of his own knowledge whether Crawford knew that the policy in question was in the safe at the compress company before the fire,, but he did state that Crawford said at one time after the fire that he knew of the existence of the policy, and at. another time that he did not know of it; and another witness who in his testimony produced the envelope in which the policy in question of the Philadelphia Underwriters was mailed to Crawford. This envelope shows-that it was addressed to Crawford in care of the Tallahatchie Compress Company, and that it was mailed, as. shown by the post office mark, on September 10, 1910'. The above is practically all the testimony in the case. The case was submitted to the jury, and a verdict was found for the plaintiff for the full amount of the policy,, three hundred dollars.

The appellant urges that the plaintiff in his replication undertook to confess and void the effect’ of the affirmative matter set up in defendant’s notice under the general issue because the plaintiff, while not denying the issuance of the policy pleaded by the defendant, set up in his replication to the general issue that such policy was issued. *501without the knowledge or consent of the plaintiff; that he never knew of the existence of the policy; that it had never been in his actual or constructive possession; and that he had never paid or promised' to pay any premium for the issuance of said policy, and that therefore the burden of proving these matters was on the plaintiff.

This contention of appellant, however, is not sound. ~When the appellant in its notice under the general issue set up the existence of another policy of insurance on the same property in violation of a warranty contained in its policy, it,assumed not only the burden of showing that such policy was issued, but that Crawford accepted it. In other words, the defendant having set up the policy in question as an affirmative defense, the burden was on it to show it was either issued at the 'request of Crawford or that he afterwards ratified its issuance by,in some way, making known an intention on his part to accept the policy. The replication is nothing more than a denial by the plaintiff of the essential averments in-the defendant’s plea under the general issue. Insurance Co. v. Farnsworth, 72 Miss. 555, 17 So. 445; Insurance Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446.

It is true that the instructions are conflicting to the •extent that the jury are instructed on the one hand that the burden of proof with reference to the essential averments in the defendant’s plea is on the plaintiff, and in another that the burden of proof as to these same matters is on the defendant. But in view of the fact that it was the defendant’s affirmative plea, the burden was properly on it, and it cannot complain because the instructions received by it were more liberal than it was entitled,to.

It is complained that the fourth instruction is erroneous, for by it the jury is instructed that the burden of proof is on the defendant to show that the Philadelphia Underwriters’ policy had been issued when this fact liad been confessed in the defendant’s reply to the notice under the general issue. This could not have been detrimental to the defendant’s case because the issuance *502of the policy was an established fact, and was so treated by both parties to the controversy on the trial of the case.

We are of the opinion that the case was fairly and properly submitted to the jury on a controverted question of fact, and it is therefore affirmed.

Affirmed.