Ætna Insurance v. Cowan County Treasurer

Citations

• 111 Miss. 453
• 71 So. 746

Syllabus

<p>1. Insurance. Pleading. Confession and avoidance. Rights of parties. Arbitration. Waiver. Loss payable clause. Effect. Independent contract.</p> <p>Where in a suit on a fire insurance policy on a building, the declaration alleged a total loss, a plea in abatement that there was only a partial loss on such building and that an adjustment and appraisal had not been had, was good as a plea in confession and avoidance.</p> <p>2. Insurance. Right of parties. Arbitration. Waiver.</p> <p>Where the insurer, under a fire insurance policy containing a loss payable clause in favor of the county treasurer as to one item of the policy, attempted to arbitrate the loss as permitted by the policy, but failed to include the treasurer in such arbitration, was void as to the treasurer and the insurer did not thereby waive its right to an arbitration with the treasurer.</p> <p>3. Instjbance. Right of parties. Loss payable clauses. Effect. Independent contract.</p> <p>The loss payable clause in a fire insurance policy does not constitute a new and independent contract in no way dependent upon the original policy between the owner and the insurer, the mortgagee’s contract and his rights thereunder are the same as the right 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 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.</p>