Ætna Insurance v. Cowan County Treasurer

Potter, J., delivered the opinion of the court. (After stating the facts as above). It is contended by the appellee in this ca.se that the declaration alleges that the loss to the building in question was a total loss, and therefore the matter in controversy was not subject to an appraisement, as the defendant company was liable for the full amount of the policy as to the item in question, regardless of the extent of the loss under section 2592 of the Code of 1906 which provides: “When real property or buildings, household, or kitchen furniture, insured against loss by fire and situated within this state are totally destroyed by fire, the com.-» pany shall not be permitted to deny that the property insured was worth, at the time of the issuing of‘the policy, the full value upon which the insurance was calculated. ’ ’ The appellee contends that the plea of the defendant ■does not deny that the building in question was destroyed by fire— “unless the averment in the plea that ‘there was only a partial' loss on the property insured under the policy sued on’ could be construed as such denial. Neither does .the plea admit the truth of the allegation that the building was destroyed. The object of the pleading is to put upon the record altercations of the parties until they come to an issue of fact or law. And after the declaration the pleading must be either a traverse or a confession and .avoidance. ’ ’ [458] This plea is a plea in confession and avoidance. When the defendant sets out in its plea that the loss was a partial loss, it thereby admits that a loss occurred, and the only question now to determine is whether or not the defendant’s plea in abatement would be a defense to the suit in question if the matters set out therein were established by a preponderance of the evidence. In so far as whether or not there was a total loss, or only a partial loss, the issue is undoubtedly made by the pleadings. We will therefore construe the matters set out in defendant’s plea in avoidance of plaintiff’s suit. In the first place it is insisted that the right of appraisement was waived by the appellee in undertaking an appraisement or arbitration with Mrs. Pelham by ignoring or not making the county a party thereto. The only result, however, of such failure on the part of the insurance company to make the county a party would be to make the arbitration void as to the county, and after its refusal to'be bound by the award the insurance company conceded that the appraisement was void in so far as it affected the interest of the county and offered another appraisement. It seems that Mrs. Pelham was satisfied with the award in so far as she was concerned-; and, if she settled with the company on the original award as to her interests in the policy, we do not see how the plaintiff’s interests were detrimentally, affected thereby. The original award was void as to the country treasurer. The insurance company conceded this, and in so far as the county’s interests were concerned, .the parties were in the same position that they would have been had no appraisement been made. In fact, as to the county, there has been no appraisement. • The main contention of the plaintiff is based on the twelfth ground of the demurrer, and is that the loss payable clause constitutes a new and independent contract in no way dependent upon the original policy between the owner and the. insurer, and that consequently the plaintiff was not bound by the appraisement agreement in the policy. We do not think this contention is sound. The [459] mortgagee’s contract and his rights thereunder are the same as the rights of the insured, except as modified by section 2596 of the Code of 1906 prescribing a form of mortgage clause to be written in all policies, and providing that the mortgagee shall not be subject to certain forfeitures therein enumerated which the insured is subject to. The provisions of this section of the Code are written into every policy containing a mortgage clause by operation of law. The section in question automatically writes itself into the insurance contract. Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So. 729, 25 L. R. A. (N. S.) 1226, Ann. Cas. 1912B, 262. This the appellee contends makes a new and independent contract between the mortgagee and the insurance company in no way dependent upon the original policy between the owner and the insured. It may be true that a new and independent contract is máde between the mortgagee and the insurance company by the insertion of the mortgage clause, but after all the policy itself is the contract between the insurer and the mortgagee. It is upon the policy and its terms that the mortgagee must recover in the event of loss, and the only difference between the contract of the mortgagee and the assured are the provisions of section 2596, which writes certain provisions into every mortgage clause, relieving the mortgagee from certain forfeitures that may be incurred by the assured. It is upon the policy that the mortgagee must recover if at all. If ' as he insists, there exists an independent contract between himself and the insurer, where are the terms of that contract to be found except in the policy of insurance? The policy designates the kind of insurance undertaken. The poiicy designates the property the policy covers. The policy names the maximum amount recoverable thereunder. If the mortgagee has an independent contract of insurance from that of the assured, the terms of the contract nevertheless are the same, except as modified by law. Bv an independent contract, however, our court meant nothing more than, if the policy of insurance [460] is void as between the insurance company and the assured on account of some act or omission on the part of the assured, that nevertheless it will be valid and binding between the insurance company and the mortgagee. Except for section 2596 mortgage clauses would probably be so written that the mortgagee, though not himself at fault, could not recover in any case where the assured himself could not recover. In our opinion the question of whether or not the loss under consideration was a total loss should have been submitted to the jury under proper instructions, and if the jury found that the loss was a total loss, the company should have been required to pay the full amount of the two thousand, five hundred dollar item of the policy, and if the jury found that the loss was only partial, the suit should have abated pending a submission of the matter to appraisement according to the terms of the policy. Reversed and, remanded.