55 So. 965 | Miss. | 1911
delivered the opinion of the court.
The appellee, the Farmers’ Mutual Fire Insurance Company, entered into a contract of insurance with appellant, W. D. Shivers, by the terms of which it insured his dwelling house and household furniture in the sum of seven hundred dollars against loss by fire. The property insured was destroyed by fire, and on- appellee’s failure to pay the loss claimed appellant brought this suit. To the declaration appellee interposed a' demurrer, which was by the court sustained, and the suit dismissed, from which judgment this appeal is prosecuted.
The question presented by the declaration and demurrer is whether the policy is unenforceable in a court of law, because the property insured is therein described as being in section 11, etc., when in fact, as shown by the declaration, it was in section 2, just north of section 11. The policy of insurance is made an exhibit to the declaration. The averments of the declaration necessary to be set out are as follows:
“That heretofore, to-wit, the said defendant was, and still is, engaged in writing insurance against loss of property by fire, and was so engaged on the 16th day of October, 1909. On the said 16th day of October, 1909, a duly authorized agent of the defendant, to-wit, James M. May, came to the home of plaintiff, about one mile from Shivers, in Simpson county, state of Mississippi, and solicited the plaintiff to take a policy in the defendant company. At the request and solicitations of the said agent, James M. May, plaintiff did -then and there*754 agree with the defendant to insure certain property, enumerated in policy No. 10962, which is made an exhibit hereto and part of this declaration. Plaintiff avers that the said agent, James M. May, of the defendant company, was, at the time that the application for insurance by plaintiff with the defendant was made, on the premises of plaintiff which is insured by said policy. The agent of the defendant saw the property, and knew exactly what property was being insured. Plaintiff avers that the agent, James M. May, did not require a formal application to be made by plaintiff, nor has plaintiff ever made formal application in writing, and there is therefore no formal written application with said policy, nor part of this policy; but the said agent, James M. May of defendant, made a memorandum of the property to be insured, and had the policy issued according to said memorandum. Plaintiff avers that by some inadvertence or mistake the location of the property insured was misdescribed, so far as its -situation is concerned; that is to say, the policy issued describes the dewelling-house and other property insured by said policy as being located in section 11, township 9, range 20, when it should have been section 2, township 9, range 20. However, plaintiff avers that said misdescription as to the location and description of the property is immaterial, as it has no effect on the hazard of the risk, or the rate of the premium, or any other material right of the defendant. Plaintiff avers that the consideration of the contract of insurance, evidenced by policy No. 10962, which is attached hereto, is seventeen dollars and fifty cents; that on the 16th day of October, 1909, the defendant, for and in the consideration of the said seventeen dollars and fifty cents, paid the defendant by the plaintiff, issued the said policy No. 10962, insuring the property of plaintiff described in said policy No. 10962 for a period of three years — that is to say, from the*755 16th day of October, 1909, to the 16th day of October, 1912.”
The property insured is described in the policy thus:
“To an amount not exceeding seven hundred' dollars, •on the following described property, .while located and •contained as described herein, and not elsewhere, to-wit:
On dwelling house :........................ $400.00
On household and kitchen furniture therein .. 100.00
On beds and bedding therein................. 75.00
On wearing apparel therein.................. 25.00
On sewing machine therein................... 15.00
On silver plate and plated ware therein........ 10.00
On printed books and engravings therein...... 5.00
On organ therein ........................... 25.00
On smoke house............................. 20.00
On provisions therein ....................... • 25.00
-located in-civil district of-county, -miles-from-, section 11, township 9, range 20 west, county of Simpson, one mile from Shivers, Mississippi.
“Reference Clause. — Reference being had to assured’s application No. 10962, which is hereby made a part of this policy, and a warranty on the part of the assured.”
Paragraph 8 of the policy provides, among other things: “This entire policy shall be void if the assured has concealed or misrepresented in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof.”
Appellant’s contention is that the error in describing the property insured as being in section 11, instead of section 2, is immaterial, because there is sufficient left in the policy after rejecting this erroneous description to identify the situation of the property insured. On the other hand, appellee contends that it was an error material to the risk, and appellant’s only remedy is by
One of the fundamental rulings governing the construction of such policies is that they are to be construed most strongly in favor of the insured. Boyd v. Insurance Company, 75 Miss. 47, 21 South. 708. And another rule is that: “The language of the policy, being chosen by the insurer, it should be construed, if practicable, so-as to cover the subject-matter intended to be covered. A portion of the description which is false may be disregarded, if enough remains to identify the property.” The contract of indemnity will be supported, if possible. 19 Cyc. 664. The policy under consideration, in addition to describing the property as being located in section 11, etc., further describes it as being in Simpson county, one mile from Shivers, consisting of a dwelling-house and household furniture, setting out specifically each class of furniture.
In Phoenix Insurance Company v. Gebhart, 32 Neb. 144, 49 N. W. 333, the property insured was grain, hay, and stock, situated on section 5, township 15, range 19, when, in fact, it was situated on section 5, township 15, range 18. The court said: “The precise question here involved was before this court in State Ins. Co. v. Schreck, 27 Neb. 527, 43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696, and it was held that the variance was not material. The agreement in a policy is to insure certain property of a party, such as the house in which he and his family reside, a barn on his farm, and a warehouse for the storage of produce, or, as in this case, certain personal property. A misdescription of the land on which any of these are situated will not defeat a recovery in the case of loss by fire, because the court looks at the real contract of the parties, which was to insure certain property of the policy holder. The fact that such property was on a particular section, as section 16, instead of 17, cannot, of itself, affect the risk, and
In Omaha Fire Ins. Co. v. Dufek, 44 Neb. 241, 62 N. W. 465, the property insured was broom corn, described in the policy as being in one township, when in fact it was in another. It was contended that the insured’s remedy was in a court of equity to reform the policy. The court said: “The contentions of plaintiff in error with reference to the necessity of a reformation of the policy precedent to bringing suit'and the alleged fatal •effect of the misdescription noted are fully met by the following language quoted from Phoenix Ins. Co. v. Gebhart, 32 Neb. 144, 49 N. W. 333, supra.
In Hatch v. New Zealand Ins. Co., 67 Cal. 122, 7 Pac. 411, the property insured was a warehouse described in the policy, “Overland free warehouse No. 1, situate at the northeast corner of Third and Keys streets, San Francisco,” when in fact, the property described was “Overland Free Warehouse No. 2,” instead of “No. 1.” ' The court held that, that part of the description •designating it as warehouse “No. 1” should be rejected •as false. The court said: “It appearing by the proof •of the actual condition of the property that the description ‘No. 1 was false,’ and that the remaining description •of the property sufficiently identified it, the false part should be rejected. We know no reason why this rule •does not apply to a description of property in a policy of insurance, as well as to a description of property in •a conveyance.”
In Prieger v. Exchange Mutual Ins. Co., 6 Wis. 89, the property insured was a paper mill, described as ■“ Prieger’s Paper Mill, situated northeast quarter of section 26, township 7, range 21,” while the fact was it was situated on the southwest quarter of section 25. The ■court said: “It is supposed that the court will take judicial notice of the relative situation of the sections and quarter sections of land according to government survey; and that the southwest quarter of section 25 cor
,To the same effect is Dougherty v. German American Ins. Co., 67 Mo. App. 526.
. The location of the property insured is an essential .element in the description, and, if its locality is erroneously described, this will void the policy. But if, rejecting such erroneous description, there is sufficient left in the policy to point out the property intended to be insured, this is sufficient. It is true parol evidence is not admissible to so extend the terms of the policy as to cover property not intended in the description, “but it may be received for the purpose of applying the description to the property intended to be described.” 19 Cyc. 670.
The court takes judicial notice of the fact that section 2 adjoins section 11 on the north; and in addition to this there is sufficient in the policy pointing out the property insured to authorize parol evidence identifying the property destroyed as that insured.
Counsel for appellee rely on Landers v. Cooper, 115 N. Y. 279, 22 N. E. 212, 5 L. R. A. 638, 12 Am. St. Rep. 801, and Martin v. Farmers’ Insurance Co., 84 Iowa 516, 51 N. W. 29. Those cases do not sustain their contention. They are cases in which the erroneous description of the property could not be rejected and leave in the policy a sufficiency of description to point out the property intended. There was not enough in the policies in those cases describing the property insured to authorize the admission of parol testimony applying such' description to the property intended.
Reversed and remanded.
