Boston Ins. Co. v. Johness Realty Co.
| Decision Date | 14 February 1966 |
| Docket Number | No. 43808,43808 |
| Citation | 183 So.2d 180,254 Miss. 512 |
| Parties | BOSTON INSURANCE COMPANY, Camden Fire Insurance Association of Camden, New Jersey, and Merchants Fire Assurance Corporation of New York, v. JOHNESS REALTY COMPANY, Inc. |
| Court | Mississippi Supreme Court |
J. C. Seaman, P. D. Greaves, Gulfport, for appellants.
Harmon W. Broom, Jackson, Gex, Gex & Phillips, Bay St. Louis, for appellee.
This is an appeal from the judgment of the Circuit Court of Hancock County based upon a claim or suit by the appellee under three policies of insurance issued one each by each of the three appellants herein. The claim or suit was based upon a fire loss which occurred on October 20, 1961, when a building and the contents thereof owned by the appellee were totally destroyed by fire. The total amount of coverage afforded by the three policies was $6,500.00.
At the conclusion of appellee's case, appellants made a motion for a directed verdict which was overruled, and the appellants then rested. The case was submitted to the jury which returned the verdict in favor of the appellee in the full amount sued for of $6,500. A motion for a judgment non obstante veredicto, or, in the alternative, for a new trial, was overruled.
From this judgment and order of the circuit court, this appeal is prosecuted.
Appellee concedes that the statement of pleadings which appears in the appellants' brief is a fair statement covering the pleadings which were filed in the circuit court and which are here on appeal. These facts tersely stated are as follows:
'This proceeding was instituted by the Appellee herein filing his declaration in the Circuit Court of Hancock County, Mississippi, in the May, 1963 Term, to recover under three policies of insurance issued on each by each of the three named defendants. A building owned by the Appellee and insured by two of the Appellants and which contained furniture, fixtures, etc. and which was insured by the other Appellant was totally destroyed by fire on October 20, 1961. The Appellee sued each of the three insurance companies on their respective policies of insurance to recover the face amounts of all three of said policies. The defendants, the Appellants herein, each filed its separate answer in which each admitted the existence of its policy of insurance sued on and admitted that it had not paid the plaintiff for the loss and affirmatively averred that its policy provided that that insurance company should not be liable for a loss occurring while the building was vacant or unoccupied beyond a period of sixty (60) consecutive days and further averred that the said building was vacant and unoccupied beyond said period of sixty (60) consecutive days preceding the date of the fire and that, therefore, the said insurance coverage otherwise provided was not in force and effect at the time of said fire.
The record discloses the following cardinal facts:
The property in question was purchased by Johness Realty Company, Inc. in August 1956. Insurance coverage was placed on the building, together with the contents thereof, with the Merchants Fire Assurance Corporation agency, Katherine E. Jordy, a local agent in Bay St. Louis, Mississippi. The record discloses that the policies of insurance upon which the suit is based were renewal policies. The property in question which was insured was a restaurant and bar. Some twenty, to fifty, to seventy-five feet away was located the keeper's cottage which was also owned by the Johness Realty Company, Inc. and was located on the same lot of land. The building was fully equipped to be operated as a restaurant for the purpose of serving food and was not equipped for lodging of any type. The record does not indicate that it was or had ever been used as a lodging.
The Johness Realty Company was operated by Mr. Allen Johness who testified that one, Mr. Stanley Carvin, was employed by the Johness Realty Company first at a fixed salary of $100 for some period of time and, subsequently, without a salary. Mr. Carvin occupied the cottage which was situated in close proximity to the restaurant or bar. At the time of the fire, Mr. Carvin was not a paid employee of appellee, receiving no monetary consideration, but he was given free rent and the use of the cottage. He had control of the grounds and the pier in front of the restaurant and bar, and he had complete custody and control over the restaurant and bar in that he was in charge of the keys, and he had use of the grounds and the pier in front of the restaurant. The record discloses that at times he had stored his rod and reel in the restaurant, and that he had worked on fishing tackle therein when the weather was bad; he had use of the pier for the purpose of renting his boat, selling bait, and doing commercial business in renting fishing tackle and related lines. The cottage in which Mr. Carvin lived was not destroyed or injured in the fire. The appellee placed two witnesses on the stand, one was Mr. Allen Johness and the other Mr. Stanley Carvin. Both testified in substance to the noted facts.
In addition to renting the pier and the selling of bait, and renting of skiffs, Mr. Carvin sometimes launches boats off the seawall in front of the restaurant and bar.
At the conclusion of the two witnesses' testimony, appellee rested his case and appellants made the motion for a directed verdict for the insurance companies involved assigning as reasons therefor--(1) the proof adduced on behalf of the plaintiff failed to bring the cause of action within the provisions of the policies of insurance sued upon, and (2) and proof is inconclusive to the fact that for more than sixty consecutive days prior to the fire in question the building which burned was vacant or unoccupied.
The lower court overruled the motion at which time the appellants declined to plead further or to offer any testimony; both sides rested their case. Sufficient and accurate instructions were given the jury, and no complaint is made here of the instructions which were granted. The case was submitted to the jury which returned a verdict for the appellee for the full amount of the policies of $6,500.
After appellants' motion for a judgment non obstante veredicto, or, in the alternative, for a new trial had been overruled by the trial court, this appeal was prosecuted.
The errors assigned by the appellants, in substance, are as follows:
1. The trial court erred in failing to sustain the motion of the defendants below, appellants here, for a directed verdict;
2. The trial court erred in failing to sustain the motion of the appellant, defendants below, for a judgment non obstante veredicto; and,
3. The court erred in failing to grant a new trial.
It is obvious that if the first error assigned, namely, that the trial court erred in failing to sustain a motion for a directed verdict is well-taken, then the other errors are automatically disposed of for the reason that the second and third errors assigned are each dependent upon the validity of the first error.
The pertinent section of the insurance policy which applies is as follows:
'* * * 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; * * *'
The basic question for consideration here is whether or not the testimony offered by the appellee is sufficient to establish the fact that the terms and restrictive conditions of the policy did not preclude recovery for the reason that the building was not vacant or unoccupied for a period of more than sixty days.
The first question therefore resolves itself into whether or not the acts of the caretaker were such as to constitute use and occupancy of the building, restaurant and bar. The record discloses that no business had been operated in the building that burned for several years prior to the fire. In addition, the record also shows that it had not been occupied during that time by anyone for any express purpose. As a matter of fact, Mr. Johness testified that there was no way for anyone to occupy it; that it was not large enough; that it was not equipped with a bed or living quarters. The nearest it came to being occupied as a building as such was in May or June 1960 at which time some people were going 'to open up the place' and made some repairs at that time, but the record shows that they never moved in or utilized it because they relinquished their plans to open and operate the restaurant. This occurred many months before the fire.
Mr. Carvin testified that the building was entirely vacant and unoccupied...
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Future Realty, Inc. v. Fireman's Fund Insurance Company, Civ. A. No. 3818.
... ... * * *" ... In a case involving facts similar to the case at bar, Boston Insurance Co. v. Johness Realty Co., 254 Miss. 512, 183 So.2d 180 (1966), the Mississippi Supreme ... Those cases are: Travelers Fire Ins. Co. v. Bank of New Albany, 244 Miss. 788, 146 So.2d 351 (1962); Asher v. Old Colony Ins. Co., 240 ... ...