Opinion
No. 42632.
April 1, 1963.
1. Insurance — fire policy — total loss — proof of amount of loss unnecessary.
In action on fire policy, if property insured was totally destroyed, it was not necessary to prove the amount. Sec. 5693, Code 1942.
2. Insurance — fire policy — total loss — admission by insurer's counsel.
Court was justified in accepting statement of counsel as equivalent of admission that there was a total loss, and hence trial court was correct in sustaining insured's motion as to amount of loss. Sec. 5693, Code 1942.
3. Insurance — fire policy — increased hazard — vacancy permitted by policy as not creating material increase in the hazard — factual situation.
A fire policy which permitted insured house to remain vacant for as long as 60 days was not suspended on ground that there was an increased hazard under control of and known to insured because tenant had vacated house 19 days prior to fire, and entry to house was available at all times, even if fire was result of vandalism, especially where within 20 to 25 feet of side door of house there was a cottage owned by insured and rented to another who agreed to watch the house for insured while it was vacant.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
Eaton, Cottrell, Galloway Lang, Gulfport; Watkins Eager, Jackson, for appellant.
I. The plaintiff failed entirely to prove the extent of damage to the house, and the defendant was thus entitled to a directed verdict. Davis v. Dantzler Lumber Co., 126 Miss. 812, 89 So. 148; Franklin Fire Ins. Co. v. Brewer, 173 Miss. 317, 159 So. 545; Hairston v. Montgomery, 102 Miss. 365, 59 So. 793; Hartford Accident Indemnity Co. v. Delta Pine Land Co. (Miss.), 188 So. 539; Hattiesburg Chero-Cola Bottling Co. v. Price, 141 Miss. 892, 106 So. 771, 143 Miss. 14, 108 So. 291; Hines v. Cole, 123 Miss. 254, 85 So. 199; McCoy v. Tolar, 128 Miss. 202, 90 So. 628; Scottish Union National Ins. Co. v. Warren Gee Lumber Co., 118 Miss. 740, 80 So. 9; The Great Atlantic Pacific Tea Co. v. Mulholland, 226 Miss. 499, 84 So.2d 504; Yazoo M.V.R. Co. v. Pope, 104 Miss. 339, 61 So. 450; Sec. 5693, Code 1942.
II. The Court erred in any event in failing to submit to the jury the issue of "increase in hazard". Frisby v. Central Mutual Ins. Co., 238 Miss. 538, 119 So.2d 382; Goldman v. Piedmont Fire Ins. Co., 198 F.2d 712; Home Ins. Co. v. Hardin, 162 Miss. 254, 139 So. 603; Phoenix Ins. Co. v. Haney, 235 Miss. 60, 108 So.2d 227; Terwilliger v. Union Fire, Accident General Ins. Co. (La.), 185 So. 43; Travelers Fire Ins. Co. v. Bank of New Albany, 244 Miss. 788, 146 So.2d 351; Western Assurance Co. v. McPike, 62 Miss. 740; 29 Am. Jur., Insurance, 529; 45 C.J.S., Insurance, Sec. 559; 4 Couch, Cyclopedia of Insurance Law, Sec. 960.
Floyd Holleman, Gulfport, for appellees.
I. The defendant admitted in its answer that the insured property was destroyed by fire and therefore it was not necessary for appellees to prove the extent of the damage to the insured premises.
II. Appellant wholly failed to prove the affirmative defense of an increase in the hazard by the insured so as to work a forfeiture or suspension of the coverage of the policy at the time of the fire.
Collation of authorities: Applewhite v. Foxworth, 79 Miss. 773, 31 So. 533; Ellis v. Sutton, 126 Miss. 114, 88 So. 519; Mississippi Home Ins. Co. v. Stevens, 93 Miss. 439, 46 So. 245; Solomon v. City Compress Co., 69 Miss. 326, 10 So. 446, 12 So. 339; Secs. 1475.5, 5693, Code 1942; 29 Am. Jur., Insurance, Secs. 887, 888, 890 pp. 97, 98, 100; 45 C.J.S., Insurance, Sec. 559 p. 314;
The insurance company had issued to McKnight a policy on a house situated in Gulfport, Mississippi. The amount was $5,000. The property burned. Suit was filed for the $5,000. At the conclusion of the evidence, the Circuit Court of Harrison County gave a peremptory instruction for McKnight and the mortgagee for the full amount of the policy.
On this appeal two questions are raised: (1) It is claimed that the insured failed to prove the amount of his damages and for this reason a peremptory instruction should have been given for insurer; and (2) that there was an increased hazard under the control and known to the insured and, therefore, the policy was suspended.
The policy contained the following provisions relative to the suspension of insurance: "Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured; or (b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days; or (c) as a result of explosion or riot, unless fire ensue, and in that event for loss by fire only."
(Hn 1) Of course, if the property were totally destroyed, it was not necessary to prove the amount because of Section 5693 of the Miss. Code of 1942.
We think the lower court was correct in its action and affirm the case.
I.
As to the question relative to the proof of amount of loss, the insured had charged in the declaration that the property was totally destroyed. There was some confusion in the pleadings filed by the insurance company in that in responding to the declaration it admitted that the property was damaged but denied all other allegations of that particular paragraph of the declaration. In a special defense filed it was stated that the property was totally destroyed. Inconsistent pleas are permitted by our statute but in our view of the case it is unnecessary for us to pass upon the effect of this statement in the special plea. 41 Am. Jur., Sec. 200, p. 434.
When the insured rested the company made a motion for a peremptory instruction on the ground, among others, that the insured had not proved the extent of his loss. Thereupon counsel for insured, who had also moved for a peremptory instruction, stated they had conceived that the admissions in the answer rendered such proof unnecessary and they moved the court to reopen the case and permit them to introduce same. The court sustained the motion and the insured was introduced. However, he was not a building contractor and his testimony was unsatisfactory as to the extent of the damages. The attorneys for insured thereupon stated they had been unable to locate the contractor who had previously examined the property and estimated the loss, and since it was late in the afternoon they requested the court to recess until the following morning so they might obtain the building contractor and introduce him. Thereupon the following occurred out of the presence of the jury:
"BY THE COURT: I think the Defendant should say, in view of the answer being indefinite, whether or not you actually contend that this was not a total loss.
"BY MR. GOODMAN: No, Sir, we do not, but we feel that having once gone to trial that we have a right to require the Plaintiff to prove his case.
"BY THE COURT: You wouldn't have to say here that it was only damaged to the extent of so much, but I think you should have made it clear that you deny it was a total loss, rather than denying that in general terms. I am going to sustain the Plaintiff's motion for a judgment for the full amount."
(Hn 2) We think the court was justified in accepting the statement of counsel as the equivalent of an admission that there was a total loss, and that the court was correct in sustaining the motion as to the amount of the loss.
II.
(Hn 3) The contention that the property burned while there was an increased hazard to the knowledge and under the control of the insured is based upon the fact that the tenant had vacated the property nineteen days prior to the fire; that there were no keys to the door of the house and the windows were not so constructed as to be locked or fastened, and entry to the house was available at all times.
It will be noted, as hereinbefore shown, that the policy contained a clause which permitted the house to remain vacant for as long as sixty days, and that at the time of the fire, it had only been vacant nineteen days. The evidence seems to indicate that the fire was a result of vandalism or deliberate action on the part of someone. However, as stated, the policy permitted the property to remain vacant for as long as sixty days, and it was shown by the evidence, which is undisputed, that within twenty to twenty-five feet of the side door of the residence was a cottage owned by the insured and by him rented to another person. He testified this tenant had agreed that while the main house was vacant, he, the tenant, would look after same, would show it to prospective tenants, and, in other words, would watch the property for him.
It is true that this Court has held a vacancy is an increased hazard, particularly in rural locations, but here the vacancy was permitted by the policy. We do not believe there was evidence of a material increase in the hazard that would require the submission of the case to the jury. Vol. 4, Couch's Cyclopedia of Insurance Law, Sec. 960.
Affirmed.
McGehee, C.J., and Kyle, Arrington and Ethridge, JJ., concur.