Mississippi Fire Ins. Co. v. Planters' Bank , 138 Miss. 275 ( 1925 )

^* Headnotes 1. Fire Insurance, 26 C.J., sections 16, 453, 585; 2. Constitutional Law, 12 C.J., section 390; 3. Constitutional Law, 12 C.J., section 898; 4. Constitutional Law, 12 C.J., section 1083; 5. Fire Insurance, 26 C.J., section 453. This is an appeal by the Mississippi Fire Insurance Company from a judgment for two thousand five hundred dollars in favor of the appellee, Planters' Bank of Tunica, upon a fire insurance policy covering a house and furniture totally destroyed by fire. The policy was issued to K.I. Wells for one thousand five hundred dollars, upon furniture, and one thousand dollars upon the residence which he occupied as a lessee. The policy of insurance recited that the dwelling house was occupied by the assured as lessee and stood upon leased premises. The exact language of the insurance policy in that respect is that the property is insured "while occupied as a dwelling by lessee (assured.)" The furniture was owned by Wells. The agent of the insurance company issuing the policy knew that Wells' interest in the dwelling was that of a lessee. After proof was made showing a total destruction of the property, the appellant, insurance company refused to pay the amount of the policy, and Wells, the assured, assigned the policy to the appellee, Planters' Bank of Tunica, and it brought this suit to recover the amount of the policy.

The controversy between the parties is only as to the payment of the one thousand dollars for the loss of the dwelling house; the appellant, insurance company, contending that it is not liable for the payment of the full amount of one thousand dollars named in the policy, notwithstanding the "valued policy law," section 5056, Hemingway's Code (section 2592, Code of 1906), which in substance provides that an insurance company shall pay to the assured the amount named in the policy, because, as appellant urges, a lessee of a building has no insurable interest therein, and that the said valued policy statute has no application to policies issued in favor of lessees, but, if so, then the lessee can recover only the value of his unexpired lease, and that, if the valued policy law does not apply, then it is unconstitutional, and that the contract would be void as against public policy, in that it would be a wager contract. It is also urged that the lessee had no insurable interest in the building because his contract with the lessor does not bind the lessee to restore the building if destroyed by fire.

These questions as to whether a lessee has an insurable interest in the leased building, and whether or not he is limited in his recovery to the value of his leasehold, and may not rely upon the valued policy statute, which provides that the insured shall recover the full amount named in the policy, are not new questions in our state. This court has several times held that the lessee has an insurable interest in a leased building and that the measure of his recovery for total loss by fire is the full amount named in the policy, providing, of course, there be no fraud in securing the insurance. The case of Home Ins. Co. v. Gibson, 72 Miss. 58, 17 So. 13, plainly lays down this rule, and fits the case now before us and answers the contentions of appellant in every particular. There are other cases, namely,Georgia Home Ins. Co. v. Jones, 49 Miss. 80; Ætna Ins. Co. v. Heidelberg, 112 Miss. 46, 72 So. 852, L.R.A. 1917B, 253; Id. (Miss.) 72 So. 470 (opinion by Justice STEVENS), Hope, etc.,Co. v. Phoenix Assurance Co., 74 Miss. 320, 21 So. 132, andInsurance Co. v. Antram, 86 Miss. 224, 38 So. 626, which are decisive against the contention presented by appellant in the case at bar.

If we should sustain the views presented by the appellant, insurance company, on this appeal, it would be necessary to overrule these cases, especially the case of Home Co. v.Gibson, supra, which completely overcomes the contention of appellant herein.

We decline to overrule these cases because they are sound, and are in accord with the statutory law on this subject. The valued policy statute has been the law for several decades, and the decision in the Home Co. v. Gibson case has been the law for about thirty years, and it holds that the lessee has an insurable interest, and may recover the full amount of the policy under the valued policy statute; and the many legislatures have had this decision before them since it was rendered and no change has been made in the valued policy law. Whether or not the valued policy law is wise or unwise is a matter about which this court is not concerned. It is the legislative will.

We do not think the valued policy statute is unconstitutional for any of the reasons, as to equal protection or due process, pointed out by the appellant; nor are its provisions against public policy, because the insurance company is under no duty to issue insurance to a lessee for any greater amount than the value of the leasehold. It enters into the insurance contract with its eyes open and receives the premium from the lessee with full knowledge of the situation, and such a contract does not, in our judgment, come within the condemnation of "a wager or gambling contract."

In the case before us the insurance company accepted the risk, received the premium, with full information that it was insuring the leased premises in favor of the lessee, and it knew the amount named in the face of the policy would, under the statute, be recoverable in the event of a total loss. In such a case we are not prepared to say there exists a public evil that should vitiate the contract as being against public policy.

The judgment of the lower court is affirmed.

Affirmed.