Fire Ass'n of Philadelphia v. Evansville Brewing Ass'n

• Decision Date: 19 April 1917
• Parties: FIRE ASS'N OF PHILADELPHIA v. EVANSVILLE BREWING ASS'S.
• Court: Florida Supreme Court

75 So. 196

73 Fla. 904

FIRE ASS'N OF PHILADELPHIA v. EVANSVILLE BREWING ASS'S.

Florida Supreme Court

April 19, 1917

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by the Evansville Brewing Association against the Fire Association of Philadelphia. Demurrer to declaration overruled, demurrer to third plea sustained, and judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The standard mortgagee clause creates an independent contract of insurance for the separate benefit of the mortgagee ingrafted upon the main contract of insurance contained in the policy itself, and to be rendered certain and understood by reference to the policy.

A policy of fire insurance in the standard form, which is void as to the assured owner, because of his breach of the warranty that his interest is not other than unconditional and sole ownership, may nevertheless be valid as to a mortgagee, when the mortgagee clause in the usual form is attached to the policy.

Where the purpose of a policy is to insure to the mortgagee his interest in the property, which is that of a lien, the ownership of the legal title to the property is not material.

An insurer has the burden of pleading and proving that a loss or some portion thereof, of the insured property, was caused by an explosion for which, under the terms of the policy, it is not liable.

While the insurer is not liable for a loss caused by an explosion which was not produced by a preceding fire, yet if the explosion is caused by fire during its progress in the building, the fire is the proximate cause of the loss, the explosion being a mere incident of the fire, and the insurer is liable.

Where an explosion is an incident to a fire already in progress the burning of the building is a 'direct loss or damage by fire,' within the meaning of the policy. If the explosion is not caused by a pre-existing fire the insurer is liable 'for the damage by fire only,' if any, after the explosion.

The refusal to give a requested charge that if the building was substantially demolished and fell down as the result of an explosion, and not as the result of fire, the verdict should be for the defendant, was not error, since the charge did not permit a verdict for the plaintiff if a fire in the building caused the explosion.

When there is substantial evidence to support the verdict which does not appear to be against the manifest weight of the evidence and the justice of the cause, and there is no harmful errors of procedure, the judgment will be affirmed.

COUNSEL Knight, Thompson & Turner and James F. Glen, all of Tampa, for plaintiff in error.

McKay, Withers & Phipps, of Tampa, for defendant in error.

OPINION

WHITFIELD J.

The Evansville Brewing Association brought an action in three counts against the Fire Association of Philadelphia, upon three fire insurance policies for $1,000, $1,500, and $500, respectively, alleging in effect in each count that the defendant company issued to J. A. Falsone its policy of insurance against a fire loss on a certain twostory frame building with metal roof for one year from a stated day in January (and July), 1915; that on September 11, 1915, the building so insured was destroyed by fire and damage and loss sustained to the amount of $7,500, under such circumstances as to come within the promises and undertakings of such policy, and to render liable and oblige the defendant to insure the said J. A. Falsone to the amounts contracted for, of which loss the defendant had due notice on, to wit, September 16, 1915; that said policy provided that loss or damage, if any, under said policy shall be payable to the plaintiff as first mortgagee as its interest may appear, and that said policy as to the interest of the plaintiff therein shall not be invalidated by any act or neglect of the mortgagor or owner of said property; that J. A. Falsone was indebted to plaintiff at the time of such loss or damage, which indebtedness was secured for payment by mortgage on said building and the land upon which it was situated, in a sum exceeding the total amount of insurance then in force on said building, and in a sum greatly in excess of the value of all securities held by it, and, although all conditions have been performed and fulfilled and all events and things existed and happened, and all periods of time have elapsed to entitle the plaintiff to a performance by the defendant of said contract and to entitle plaintiff to the stated sums, and nothing has occurred to prevent plaintiff from maintaining this action, yet the said defendant has not paid or made good to plaintiff the said amount of loss and damage aforesaid, etc. See statutory form, section 1450, Gen. Stats. 1906 (Compiled Laws 1914). The policies are attached to and made a part of the declaration.

A demurrer to the declaration was overruled, and the defendant filed the following pleas to the declaration:

'1. That the building insured was substantially destroyed and fell as the result of an explosion, and not as the result of fire, and the said building was substantially destroyed and fell before the fire mentioned in the plaintiff's declaration, whereby the said policy, by the terms thereof, immediately ceased to be in force, and was not in force at the time of the fire mentioned in the plaintiff's declaration.

'2. And for a further plea the defendant says that the building insured was totally destroyed as the result of an explosion, prior to the fire mentioned in the plaintiff's declaration, and the loss of the said building was not due to or caused by the fire as alleged in the plaintiff's declaration, but was due and caused by an explosion,

'3. And for a further plea the defendant says that at the time of application for the policy sued on, at the time of execution and delivery thereof, at the time the same according to its terms went into effect, and thereafter and up to and at the time of the alleged loss, and at all intervening times, the interest of J. A. Falsone in the premises insured was other than unconditional and sole ownership, in that the said J. A. Falsone was not the sole owner of the said premises at the said time.'

A demurrer to the third plea was sustained, and the plaintiff joined issue on the first and second pleas as above.

The following verdict was returned:

'We, the jury, find for the plaintiff and assess its damages at the sum of three thousand one hundred and seventy-three dollars and 24 cents, and three hundred and fifty dollars attorney's fees, so say we all.'

Upon this verdict the following judgment was rendered:

'Thereupon it is ordered and adjudged that the plaintiff. Evansville Brewing Association, a corporation, do have and recover of and from the defendant, Fire Association of Philadelphia, a corporation, the sum of three thousand five hundred and twenty-three and 24/100 dollars as damages, and the further sum of ten and 15/100 dollars its costs in this behalf expended, for which let execution issue.'

On writ of error taken by the defendant it is contended that the court erred in (1) sustaining the demurrer to the third plea; (2) in giving and refusing charges; (3) in refusing to direct a verdict for the defendant; and (4) in denying a new trial.

The policies contained the following, known as the 'standard or union mortgage clause':

'This insurance, as to the interest of the mortgagee * * * only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property * * * nor by any change in the title or ownership of the property: * * * Provided * * * that the mortgagee * * * shall notify this company of any change of ownership or occupancy * * * which shall come to the knowledge of said mortgagee.'

Under this provision of the policies it was immaterial whether 'the interest of J. A. Falsone in...