Caledonian Ins. Co. v. Smith

• Decision Date: 13 May 1913
• Citation: 65 Fla. 429,62 So. 595
• Parties: CALEDONIAN INS. CO. v. SMITH et al.
• Court: Florida Supreme Court

62 So. 595

65 Fla. 429

CALEDONIAN INS. CO. v. SMITH et al.

Florida Supreme Court

May 13, 1913

On Rehearing, June 26, 1913.

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by J. Frank Smith and another against the Caledonia Insurance Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A fire insurance policy was issued on three dwelling houses situated in a row and near together. It was proved in the policy that 'this entire policy unless otherwise provided by agreement indorsed hereon or added hereto shall be void * * * if a building herein described, whether intended for occupancy by owner of tenant, be or become vacant or unoccupied and so remain for ten days.' The policy contains two indorsements for vacancy permits, one from July 31, 1912, for 30 days from date, and the other is a vacancy permit for 30 days from August 31, 1912. The middle house was unoccupied and burned on the 6th day of October, 1912 destroying all of the three buildings. Held, that a vacancy of more than ten days previous to the first indorsement of a vacancy permit of 30 days cannot either by itself or in connection with the six days' vacancy in October, 1912 avoid the policy, as the insurance company by indorsing the vacancy permits on the policy waived the previous vacancy and continued the policy with the same binding force it originally possessed.

COUNSEL E. C. Maxwell, of Pensacola, for plaintiff in error.

Reeves & Watson & Pasco, of Pensacola, for defendants in error.

OPINION

HOCKER J.

The defendants in error sued the plaintiff in error to recover the amount of a fire insurance policy on three one-story shingle roof frame dwelling houses, each insured for $300. It appears from the pleadings that these dwelling houses stood in a row a few feet apart, so close together that the burning of one would cause the burning of the others, and constituting but a single risk; that by the terms of the policy of insurance it was stipulated and agreed that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, should be void if a building therein described, whether intended for occupancy by the owner or tenant, should be or become vacant or unoccupied and so remain for ten days; that one of the buildings described in the policy and insured, to wit, the middle building, became vacant during the pendency of said contract of insurance and during the vacancy was burned and the fire was communicated therefrom to the other buildings, whereby all of them were burned and destroyed. There was a judgment below in favor of the defendants in error which is here for review. The issues are so framed as to present here: First, the question of the liability of the plaintiff in error under the policy; and, second, if liable, whether the policy is a divisible one. If the first proposition is decided against the insurance company, the second is eliminated.

The policy contains the following provision: 'This entire policy unless otherwise provided by agreement indorsed hereon or added hereto shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.' It has the following indorsements:

'Pensacola, Florida, July 31st, 1912.

'Permission is hereby granted for the buildings insured hereunder to remain vacant for a period of thirty (30) days from this date.

'To attach to and form a part of policy No. 1947222 of the Caledonian Fire Insurance Company of Scotland.

'[Signed by Agents.]'

'Pensacola, Florida, August 31st, 1912.

'Permission is hereby granted for the building insured hereunto to remain vacant for a period of thirty (30) days from this date.

'To attach to and form a part of policy No. 1947222 of the Caledonian Insurance Company of Scotland.

'[Signed by Agents.]'

The middle building caught on fire on the 6th day of October 1912, which destroyed all of the three buildings. It is alleged by the insurance company in its pleas, to which demurrers were sustained, that prior to the month of July, 1912, the middle building became vacant during the pendency of the contract of insurance, and so remained continuously until the 6th of October, 1912, when the fire occurred, and it is insisted in argument here that because of this vacancy the policy became void, and the company is not liable. No authorities are cited by plaintiff in error. From such an examination of the law as we have been able to make, it seems to us that such a provision against a vacancy, when one occurs, does not render a policy void but voidable. That principle is recognized in the Florida Cases. See Tillis v. Liverpool & L. & G. Ins. Co., 46 Fla. 268, 35...