Globe & Rutgers Fire Ins. Co. v. Green

• Decision Date: 27 March 1933
• Docket Number: 30464
• Citation: 167 Miss. 698,146 So. 889
• Parties: GLOBE & RUTGERS FIRE INS. CO. v. GREEN
• Court: Mississippi Supreme Court

146 So. 889

167 Miss. 698

GLOBE & RUTGERS FIRE INS. CO. v. GREEN

No. 30464

Supreme Court of Mississippi

March 27, 1933

Division B

1 INSURANCE.

Insured not obtaining vacancy permit during three months' period between two fires, could not recover on policy containing 30-day vacancy clause for loss caused by second fire.

2 INSURANCE.

Insured, permitting building, rendered uninhabitable by fire, to remain unoccupied during time allowed insurer to exercise option to repair building, could not recover for loss caused by second fire after permitted vacancy period, where insurer adjusted loss within option period.

3. PLEADING.

Insurer pleading violation of ten-day vacancy in fire policy held not precluded from relying on 30-day clause proved by insured.

HON. R. W. CUTRER, Chancellor.

APPEAL from the chancery court of Adams county HON. R. W. CUTRER, Chancellor.

Suit by Lillie Green against the Globe & Rutgers Fire Insurance Company. Decree for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and decree here for appellant.

Watkins, Watkins & Eager, of Jackson, for appellant.

The policy sued on was void, inoperative, suspended and of no force and effect at the time the dwelling was totally destroyed by fire by reason of the fact that it had remained unoccupied for more than ten days prior thereto without an endorsement thereon in writing permitting such vacancy.

Western Assurance Co. v. McPike, 62 Miss. 740; Wood on Fire Ins., 180, 181; Home Ins. Co. v. Scales, 71 Miss. 975; Lester v. Mississippi Home Insurance Company, 19 So. 99; Home Ins. Co. v. Hardin, 139 So. 603.

The authorities are in substantial accord that a provision in a fire insurance policy to the effect that the same shall be void if the insured premises shall remain vacant and unoccupied for a period of more than ten days, is a reasonable and binding condition; and there can be no recovery if after said period, the property while still vacant and unoccupied is destroyed by fire.

Biss v. Globe Ins. Co., 85 W.Va. 134, 101 S.E. 247, 8 A. L. R. 373; Home Ins. Co. v. Hardin, 139 So. 603.

Whittington & Brown, of Natchez, for appellee.

Under the vacancy permit agreement the dwelling could by permission be unoccupied for six months even; but the only way that it could be established that this vacancy was not in accordance with the provisions of the contract would be to show that such permission was not endorsed on the policy itself.

There was no effort on the part of the appellant to establish any such proof, and hence we say this defense is not shown by the record herein.

Our answer to the contention made under this vacancy permit clause is that the property could not be inhabited or used as a place of habitation from the time of the first loss until the time of the second loss.

The question, therefore, of whether the house would be regarded as vacant under these circumstances and conditions when it could not be tenanted is a novel question and one which this court has not yet passed upon.

It has been held that the insured was not guilty of a breach of the clause providing that the policy should be void if the insured building should become vacant or unoccupied and so remain for ten days where a partial loss of the house occurred July 31st which rendered it untenantable and which remained vacant until September 23rd when a second fire totally destroyed the building.

Lancashire Ins. Co. v. Bush, 60 Nebr. 116, 82 N.W. 313; Schmidt v. Williamsburg City F. Ins. Co., 98 Nebr. 61.

It would be utter nonsense to require permission to vacate something which was incapable of being tenanted. Certainly the insurance companies appreciate this fact. They have every way of protecting themselves in cases of partial loss by fire by simply writing in the contract what they propose to do in such cases.

After a partial loss rendering the building untenantable, the vacancy clause is not violated because insured allows the property to remain unoccupied during the period in which insured is authorized to exercise its option to repair. A provision so worded as to apply to a vacancy under such conditions would be unreasonable. There is, however, authority to the contrary.

26 C. J. 217; Lancashire Ins. Co. v. Bush, 60 Nebr. 116, 82 N.W. 313.

OPINION

Anderson, J.

Appellee filed her bill in the chancery court of Adams county against appellant to recover a fire loss on her residence under a fire insurance policy theretofore issued by appellant to her. There was a trial on original bill, answer and proofs, resulting in a decree in appellee's favor in the sum of one thousand five hundred sixty-seven dollars and ninety cents; from that decree appellant prosecutes this appeal.

Appellant defended upon three grounds: (1) That when the fire occurred the policy had been cancelled; (2) that appellee had violated the vacancy clause of the policy; (3) that appellee failed to give notice and make proof of loss as required by the policy; and that upon each of these grounds appellant should have had a decree of no liability. We are of opinion that appellant was entitled to a decree upon the second ground, namely, that there was no liability because appellee had violated the vacancy clause of the policy. It therefore becomes unnecessary to pass on either of the other grounds.

There is no real and substantial dispute as to the facts out of which this question arises. Appellee owned a residence in the city of Natchez. It was insured against damage or loss by fire by appellant. On May 18, 1930, while the policy was in force, the residence was partially destroyed by fire. It was damaged to such an extent that it was uninhabitable. There were two mortgages on the property; one in favor of H. M. Marks, and the other in favor of Louis Fry. These mortgages were given to secure debts due by appellee to Marks and Fry; H. S. Patterson was the trustee in each of them. Attached to the policy was the usual mortgage provision, which provided, among other things, that in case of loss or damage under the policy proceeds should be payable to H. S. Patterson, trustee in those mortgages, as the interest of the mortgagees might appear. Shortly after the fire appellee employed H. S. Patterson, trustee in the mortgages, as her agent and attorney to give notice and make proof of the loss and adjust with and collect the proceeds of the loss from appellant and apply it on the mortgages held by Fry and Marks. The fire loss was insufficient to satisfy the mortgages. Accordingly, Patterson, representing appellee and the mortgagees, gave notice of the loss and made proof thereof, as required by the policy. The proof was made on the 10th of June, 1930; however, on the back of the proof there is this notation: "Received, June 27, 1930. A. C. M. Globe & Rutgers." In a day or two, and at the outside only a few days, after proof of loss was made, Patterson an I appellant adjusted the loss, agreeing on the sum of three hundred ninety-eight dollars. The adjustment was concluded before the 25th of June, because on that day appellant...