98 So. 101 | Miss. | 1923
delivered the opinion of the court.
Appellee, E. M. Dixon, sued the appellant, the Mississippi Fire Insurance Company, a corporation under the laws of this state, in the circuit court of Hinds county for seven hundred dollars for which he claimed appellant was liable to him for the loss by fire of certain household furniture under a fire insurance policy issued to him by the appellant. There was a verdict and judgment for ap-pellee for the amount sued for with interest and costs, from which appellant prosecutes this appeal.
Appellant urges several grounds for the reversal of the case. It contends that the policy of insurance in question never became a binding contract between the parties; that it was void because of the fact (which was shown on the trial) that appellee was not the owner of the building in which the household furniture insured find lost was located; that the policy so stipulated in one of its provisions, and the statement being material and false, the policy was void. The amount of the insurance effected by the policy and the description and location of the property insured are contained in two paragraphs of the policy which follow:
“None on the one-story composition roof frame dwelling and additions actually attached thereto, including foundations, heating, lighting, and all other permanent fix*580 tures, only while occupied as -a dwelling by owner situated north side of Main street in Catching», Sharkey county, Mississippi.
“Seven hundred dollars on household furniture, useful and ornamental, beds, beddings, linen, wearing apparel of family, printed books, pictures, paintings, engravings, and their, frames (value on said pictures, paintings, engravings and their frames in case of loss not to exceed cost), musical instruments, scientific instruments, plate and plated ware, china, glass and crockery ware, watches and jewelry in use, sewing machine, trunks, valisés, bicycles, firearms, sporting goods, fuel and family stores, only while contained in the above-described building.”
The policy involved is the standard form of policy in use. In considering this question the well-established principle of law should be borne in mind that, where there is any ambiguity in a .policy of insurance, doubts of construction arising therefrom will be resolved in favor of the insured. The two paragraphs of the policy copied above are set out ip substantially the same form as they appear in the policy. This is done because the form has some significance as to their meaning.
It will be observed that the first paragraph simply describes the residence of the insured and its location. The second paragraph describes the household furniture which is, insured, first setting out the amount of insurance undertaken, and concludes with this language following the description of the household goods: “Only while contained in the above described building.” In the first paragraph, in describing the building this language is used: “Only while occupied as a dwelling by owner.” Appellant argues that, although the household furniture, and not the residence, was insured, nevertheless the insurance on the household furniture was conditioned upon its being located in the residence of the insured, and also upon his ownership of such residence. We do not think that to be a fair interpretation of the language of the policy. The
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstances concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
Certainly the courts will not write a forfeiture into an insurance policy where the parties thereto have failed to do so. We are therefore of opinion that there is no merit in that contention.
The policy ihvolved in this cause has the usual arbitration stipulation, which is in this language:
“In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their difference to the umpire; and the award in writing of any two shall determine the*582 amount of such loss; the parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.”
Appellant contends that a compliance with said stipulation by appellee was, a condition precedent to- his right to sue; that without such compliance he had no standing in court. It will be observed' that said stipulation only provides for arbitration “in the event of disagreement as to the amount of loss.” The evidence in this case shows that before suit was brought there was an unqualified denial by appellant of any liability to- appellee. Where the insured denies liability there can be no disagreement as to the amount of loss. Under such circumstances there is nothing to arbitrate. An arbitration of the amount of the loss would be an acknowledgment of liability on the part of the insurer. This provision of the policy does not come into operation unless there is a-disagreement between the parties as to the amount of the loss. It is simply a provision for a method of settlement out of court. 26 Corpus Juris, section 574, p. 431. And, furthermore, an arbitration stipulation of this character may be waived by failure of either party to demand its execution. In order to be entitled to the benefit of said stipulation it was the duty of appellant to put appellee in default by proposing to carry out said provision. 26 Corpus Juris, section 572, p. 430.
Another defense made by appellant was that the policy was void because appellee’s proof of loss showed a loss of more than the face of the policy, when in truth and in fact his loss was not more than two hundred dollars. The appellant contends that under the last clause of the forfeiture stipulation of the policy, the proof of loss being false and fraudulent, the policy'was avoided. The last Clause of the forfeiture stipulation is in this language:
“Or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or*583 the subject thereof whether before or after loss(Italics ours.)
That question was submitted to the jury on instructions.
Appellant contends that the following instruction given for appellee contained an erroneous statement of law, and, furthermore, was not applicable to the facts of the case:
“The court instructs the jury for the plaintiff that where fraud is relied upon as a, defense, the burden of proving such fraud is upon the defendant and the proof must be clear and convincing. While such charges and defenses may be proved by circumstantial evidence the circumstances must ,be proven with reasonable certainty and the circumstances so proven must be such that the conclusion sought to be established follows logically from the facts. If there are two or more reasonable theories which may be drawn from the facts proven the proof will be insufficient because to invest mere circumstances with the force of truth the conclusion must not only be logical and tend to prove the facts charged but must be inconsistent with a reasonable theory of innocence.”
This instruction, as held in Banks v. Banks, 118 Miss. 783, 79 So. 841, correctly states the law. And the holding of the court in the Banks Case was reaffirmed in Insurance Co. v. Robertson, 131 Miss. 343, 94 So. 7, 95 So. 137. If the instruction had no application to the facts of the case, which is not decided, it was nevertheless harmless in view of the fact that the jury were instructed in nine instructions for appellee and seven for appellant as to every phase of the questions submitted to them. It is inconceivable, therefore, that, if this instruction merely stated an abstract principle of law, it could have influenced the jury one way or the other.
Appellant complains further at the giving of the following instruction for appellée:
“The court instructs the jury for the plaintiff that even though you believe that an overvaluation was made by the*584 plaintiff in his proof of loss this will not defeat his recovery unless you find further that such overvaluation was made for the purpose of defrauding the defendant and if you should find that the overvaluation if in truth and in fact there was an overvaluation, is innocent, you- will return a verdict for the! plaintiff.” . '
The question presented is whether, in order to avoid a policy of this character on account of an overvaluation by the insured, such overvaluation must be fraudulent or not. Tlie court told the jury that an overvaluation made in good faith, would not avoid the policy. The instruction was clearly right. The stipulation of the policy providing against fraudulent proof of loss means simply what it says, that it must be fraudulent, and it is not fraudulent if it is made in good faith.
Appellant argues that it is entitled to a new trial because the court below should have granted its application for a continuance on account of the absence of the witnesses Mayers and Harbour. The witness Mayers was appellant’s adjuster, who undertook to adjust the loss suffered by appellee. In the application for a continuance on account of his absence, what appellant expected to prove by hiifi was set out. By agreement of the parties it was admitted by appellee that said Mayers would testify to the facts set forth in said application, and on the trial his evidence as therein embodied was read to the jury. The facts which appellant desired to prove by the witness Harbour were proved by three other witnesses introduced by appellant. It is true the witness Harbour would have varied somewhat in the time and circumstances from the other witnesses; still’ in all substantial respects his testimony would have been the same. In other words, his testimony would have been ’ cumulative. We cannot say under the circumstances, that appellant was preju-’ diced by the failure of the trial court to grant a continuance on account of the absence of these witnesses.
Affirmed:
