Liverpool & London & Globe Insurance v. Farnsworth Lumber Co.

Whitfield, J., delivered the opinion of the court. So far as the contention about the promissory nature of the warranty is concerned — that "a continuous clear space of fifty feet should thereafter [after the date of the policy] be kept between the lumber and any woodworking establishment” — it is settled against appellant, on the case made by this record, by the cases of Mitchell v. Mississippi Home Insurance Co., ante, p. 53, and Rivara v. Insurance Co., 62 Miss., 720. In the last case the court says: "A condition in an insurance policy prohibiting the use or deposit of certain articles may be waived, and is waived, if the agent taking the insurance knew at the time it was taken that the prohibited articles were used or kept, or were to be used or kept, on the premises. ’' By the eighth instruction given for the plaintiff (appellee), the court told the jury that "the burden of establishing that there was a breach of the warranty of the policy for the maintenance of a continuous clear space of fifty feet, etc., was upon the defendant.” We think this is a correct announcement of the law, according to the latest and best considered cases. It is true Mr. Biddle, in § 557 of vol. 1 of his valuable work on Insurance, states that " the burden of performance is on the insured, ’ ’ on the ground that a " warranty is in the nature, ’ ’ in [562] insurance law, “of a condition precedent.” He refers-to the decisions in certain states and the decisions of the United States supreme court holding the contrary view, as holding that view for reasons of “convenience,” etc. But, in §§ 1247-1250 of vol. 2, Mr. Biddle abandons this view. Whilst, in these latter sections, disposed to put these later cases on the narrow ground that the burden was held in them, or some of them, to be on the defendant, if the defendant, not content with the general issue, set up by special pleas the specific breaches of warranties, on which it relied, for the reason that, having thus specially selected the breaches relied on, and plead them, the defendant should prove them as matter of specific defense, ho is yet driven practically to admit that, by the latest decisions, “a different rule may possibly Ire said to have been asserted ’ ’ in England. The same observation could well have been extended to America. We select only a few out of the multitude of cases placing the burden upon defendant. In Freeman v. Traveller's Insurance Co., 144 Mass., p. 572 — a finely reasoned case — where the condition, in a life policy, was that the insured ‘ ‘ should use all due diligence for personal safety and protection, ’ ’ the court point out that, where a clause can be regarded as a proviso — that is, a stipulation added to the principal contract to avoid the defendant’s promise by way of defeasance or excuse — it is for the defendant to plead it in defense and support it by evidence; but if, on the other hand, it is an exception, so that the promise is only to perform what remains after the part excepted is taken away, then the plaintiff must negative the exception to establish a cause of action, and then proceed to say: ‘ ‘ The condition we are considering is essentially an executory stipulation in the form of a condition that the insured shall use all due diligence for his personal safety and protection, and it is the breach of this condition by the insured which the defendant sets up as a defense. We are not aware that it has ever been held that the introduction of the words we have quoted, or of other similar words, into the principal clause of a policy [563] of insurance incorporates into this clause the conditions of the policy within the meaning of the rule of pleading we have stated. . . Every case depends upon the nature of the stipulation or condition as well as upon the form of it. -This condition does not differ, in its character, from the provision in life insurance policies that they shall be void . . if the assured shall die by his own hand. The burden of proving the breach of such a provision is on the company,” citing many authorities, among the rest Grangers’ Ins. Co. v. Brown, 57 Miss. ,308. The instruction is correct, within this reasoning, as to the rule of pleading discussed, but we prefer to put the correctness of the instruction upon the broader ground announced in Piedmont, etc., Life Ins. Co. v. Ewing, 92 U. S., 377, followed and adopted in Grangers’ Ins. Co. v. Brown, 57 Miss., 308. As said by that court: “The number of the questions now asked of the assured in every application for a policy, and the variety of subjects . . which they cover, are such that it may safely be said that no sane man would ever take a policy if proof to the satisfaction of a jury of the truth of every answer were made known to him to be an indispensable prerequisite to payment.' . . On the other hand, it is no hardship that, if the insurer knows or believes any of these statements to be false, he shall furnish the evidence on which that knowledge or belief rests. He can thus single out the answer whose truth he proposes to contest, and, if he has any reasonable grounds to make such an issue, he can show the facts on which it is founded. ’ ’ There can be no difference, in principle, as to the application of this reasoning between life and fire policies, written as the one in this record, and as they are now usually written. The same rule is emphatically declared in Blasingame v. Home Ins. Co., 75 Cal., 633, and Portsmouth Ins. Co. v. Reynolds, 32 Grattan, 613, both fire insurance cases. What is said in- Alalama Gold Life Ins. Co. v. Johnston, 80 Ala., 467, of life insurance policies, is perfectly applicable to fire insurance policies, [564] and we quote it to approve it: ‘ ‘ The rapid growth of the business of . . insurance in the past quarter of a century, with the tendency of insurers to exact increasingly rigid and technical conditions, and the evils resulting from an abuse_of the whole system, justify, if they do not necessitate, a departure from the rigidity of our earlier jurisprudence on this subject of warranties, and such is the tendency of the more modern authorities ” — language finding its echo in Miller v. Insurance Co., 31 Iowa, 216. If this instruction be subject to criticism by reason of the phrase that the “minds of the jury should be satisfied to a reasonable degree of certainity, ” it is certainly not a case of reversible error. W e have ‘' waded wearily ’ ’ through the sixty-five pages of pleading. We have declarations original and amended, the plea of the general issue and seven further and special pleas, joinder of issue on the general issue, demurrer to further third plea, two replications to the further first plea, one to the further second plea, three replications to defendant’s further fourth plea, two replications to defendant’s further fifth plea, and two to the further sixth plea, and replication to the defendant’s further and seventh plea. Then follow demurrers — demurrer to plaintiff’s first replication to defendant’s sixth plea, and to plaintiff’s first replication to defendant’s further first plea, and also to plaintiff’s second replication to defendant’s further first plea, and so on for ten pages of the record; then we have an amended replication to defendant’s further fourth plea, and a demurrer thereto, after which, in regular order, come rejoinders, seven in number, and finally the court sustained “the demurrer of plaintiff to defendant’s rejoinder to plaintiff’s amended replication to defendant’s further fourth plea.” What is said in Scales' Case, 71 Miss., 978, fits in here perfectly. The parties got at issue at last, and the controverted point is the point herein discussed and disposed of. We find no reversible error, and the judgment is Affirmed.