Buccola v. Natl. Fire Ins. Co. of Hartford, Conn

• Decision Date: 03 November 1931
• Docket Number: 13,787
• Citation: Buccola v. Natl. Fire Ins. Co. of Hartford, Conn, 137 So. 346, 18 La. App. 353 (La. App. 1931)
• Court: Court of Appeal of Louisiana
• Parties: BUCCOLA v. NATL. FIRE INS. CO. OF HARTFORD, CONN

137 So. 346

18 La. App. 353

BUCCOLA v. NATL. FIRE INS. CO. OF HARTFORD, CONN

No. 13,787

Court of Appeals of Louisiana, Orleans

November 3, 1931

Rehearing Refused January 14, 1932.

Writs of Certiorari and Review Refused by Supreme Court February 1 1932.

Appeal from the Civil District Court for the Parish of Orleans Division "B." Hon. Mark M. Boatner, Judge.

Action by Carmelo Buccola against National Fire Insurance Company of Hartford, Conn.

There was judgment for defendant and plaintiff appealed.

Judgment reversed.

Michel Provosty and Oliver P. Carriere, of New Orleans, attorneys for plaintiff, appellant.

Stirling Parkerson, of New Orleans, attorney for defendant, appellee.

OPINION

WESTERFIELD J.

Buccola, the plaintiff in this case, on October 17, 1928, obtained from the defendant, the National Fire Insurance Company of Hartford, Connecticut, a fire insurance policy in the sum of $ 1,000, covering, for a period of three years, a one-story frame building known as No. 6058 General Haig street in the city of New Orleans. On March 24, 1930, while the policy was in force, the building was damaged by fire in an amount admittedly exceeding the face of the policy. Payment of the loss being refused by the insurance company, this suit was brought for $ 1,000, the amount of the policy.

There was judgment below in favor of defendant dismissing the suit and plaintiff has appealed.

Plaintiff's claim is resisted upon three grounds:

First, because under the express terms of its policy the property was insured against fire only "while occupied as a dwelling," and when the loss occurred the property was not so occupied, but used for commercial purposes; that is, for the manufacture of intoxicating beverages.

Second, there was a change of occupancy with increase of hazard, contrary to the provisions of the policy, with resulting forfeiture thereof.

Third, the policy was annulled by false swearing on the part of the insured in connection with the execution of proof of loss.

The evidence is to the effect that Buccola had caused a rental sign to be placed upon the property reading as follows:

"For rent. Apply next door."

Observing this sign, a party by the name of Smith called next door and made inquiry of Miss Margaret Ritter, the occupant of the adjoining property, which was also owned by Buccola, concerning the renting of the premises. Miss Ritter directed Smith to Buccola, who lived at some distance from the Haig street property on Second street, whereupon Smith called upon Buccola and rented the property for the sum of $ 10 per month. About two months after taking possession the fire occurred, resulting in the total destruction of the property. Among the ruins were discovered a number of partially destroyed wooden barrels and a quantity of five-gallon cans and a large tank, also other odds and ends, which, it is claimed, were used in the manufacture of alcohol. Some of the barrels contained cracked corn and other ingredients which were said to emit an alcoholic fragrance.

The first point raised by the defendant is based upon the provision in the policy to the effect that the property is insured while occupied as a dwelling, clearly importing, it is said, that the property was not covered if not so occupied. This clause has been construed as a mere representation and not a warranty:

"But in those cases, where, from the stipulations of the contract, such statement amounts to a warranty, the warranty must be referred to the time of making the proposal, it is not a continuing warranty that it shall be continued to be used and occupied as stated during the entire risk, or that the use and occupation shall not be changed." Joyce on Insurance, vol. 4, p. 3618, section 2103, and authorities there cited.

However, in the case before us the exclusive commercial occupancy of the dwelling is by no means established by the proof in the record. Miss Ritter, who lived next door to the property, testified that she saw Smith move in, accompanied by a woman whom she assumed to be his wife; that she saw a load of furniture delivered on the premises; and that, thereafter, frequently, she saw Smith and his wife about the place, sitting upon the front porch and otherwise conducting themselves as would be expected in the case of a married couple occupying the dwelling. The very night before the fire, she says, she saw the couple about the premises. Miss Ritter's testimony is attacked as unworthy of belief because of her statement to the effect that she knew of no still being operated in the premises and had not noticed any odor of fermenting liquids. Miss Ritter, however, conducted a dairy, and it was her practice to leave her home very early in the morning to bring milk to her customers, returning in the early afternoon, and retiring shortly thereafter. If the still was in operation, it is possible that Miss Ritter would not have been made aware of its presence because of her unusual occupation, and, so far as the odors which emanated from fermenting alcoholic liquors are concerned, the prevailing winds during her waking hours may have wafted their fragrance in the opposite direction, or, perhaps, the operator of the still may have taken some precaution to prevent the escape of these odors; and then, too, it may be that Miss Ritter is not familiar with and could not recognize the odor of alcohol, even though such odors were actually within the scope of her nostrils. From the state of the record we are unable to conclude that the property was not occupied as a dwelling at the time of the fire, whatever may be said of the presence of the still, and the increased hazard which its operation would involve.

On the second point raised by defendant's counsel, two provisions of the policy are pertinent:

(a) "This entire policy * * * shall be void; * * * if the hazard be increased by any means within the control or knowledge of insured. * * *"

(b) "This entire policy * * * shall be void; * * * if any change other than by death of the insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise."

It is apparent that these two clauses in the policy are inconsistent, because, to provide that the policy shall be void if the hazard be increased by any means within the control or knowledge of the insured, is equivalent to saying that an increase in the hazard without the control or knowledge of the insured will not invalidate the policy; whereas, to stipulate that the policy shall be void if any change, except death, occur in the interest, title, or possession of the property, except change of occupancy without increase of hazard, is equivalent to stipulating that a change in the occupancy, of whatsoever nature, which involved an increase in hazard would invalidate the policy with or without the knowledge of the insured.

Defendant's counsel contends, as we understand his argument, that the phrase "by any means within the control or knowledge of the insured" cannot be used to qualify or to detract from the emphasis of the other clause declaring that the policy "shall be void if any change other than death of an insured takes place, etc." This clause is claimed to be "an explicit statement that changes of occupants with increase of hazard shall render the policy void, even though it shall occur as the result of some act beyond the control of the insured. It is a declaration in clear, positive and unequivocal language that if such a change in occupancy occurs, no matter how, and even if the insured is powerless to prevent it, it shall annul the policy." "The phrase ending 'within the means, control or knowledge of the insured,'" the argument continues, "is only pertinent to a situation involving changes other than those which necessarily affect the interest, title or possession of the subject of insurance." In other words, one clause attempts to specify in detail the hazardous changes affecting the property, whereas the other clause is intended to supplement it by declaring in general terms that all other changes which may affect the hazard would invalidate the policy only if "within the knowledge or control of the insured." To quote again from counsel's brief: "If, however, the insured has knowledge of some act or thing that increases the hazard, other than those specifically enumerated in...