Livaditis v. American Cas. Co. of Reading, Pa., 43291

• Decision Date: 09 February 1968
• Docket Number: No. 3,No. 43291,43291,3
• Citation: 160 S.E.2d 449,117 Ga.App. 297
• Parties: John E. LIVADITIS v. AMERICAN CASUALTY COMPANY OF READING, PA
• Court: Georgia Court of Appeals

Page 449

160 S.E.2d 449

117 Ga.App. 297

John E. LIVADITIS v. AMERICAN CASUALTY COMPANY OF READING, PA.

No. 43291.

Court of Appeals of Georgia, Division No. 3.

Feb. 9, 1968.

Rehearing Denied Feb. 23, 1968.

Syllabus of the Court

1. Recovery may be had on a vandalism clause in a dwelling insurance policy for intentional destruction caused by tenants using the premises for illegal purposes.

2. A contractual provision in the policy requiring that the action be brought within 12 months of the inception of the loss is a condition precedent to recovery. Where the damage might with equal probability have been inflicted within or prior to the period limited, there being no evidence on this subject, the trial court did not err in entering judgment in favor of the defendant.

The plaintiff, Livaditis, leased his five-bedroom dwelling house, unfurnished except for refrigerator, stove, drapes, and carpeting, in late September, 1964, to a man identified only as Franklin. The keys were delivered on the premises and Franklin stated that 'they' were moving in from North Carolina. Between that date and February 8, 1964, various persons visited the premises and were unable to obtain entrance. When they eventually effected a forcible entry it was discovered that the house had been used for the manufacture of moonshine liquor, resulting in severe damage to the premises. The plaintiff made a loss claim under the defendant's homeowner's insurance policy and thereafter filed this action. Jury trial was waived, the judge found in favor of the defendant, and the plaintiff appeals.

Westmoreland, Hall & O'Brien, Frank B. Strickland, Atlanta, for appellant.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Scott Charlton, Atlanta, for appellee.

DEEN, Judge.

1. This action was brought under a provision of the insurance policy: covering 'Vandalism and malicious mischief, meaning only the wilful and malicious damage to or destruction of the property covered, but excluding as respects this peril loss if the described dwelling had been vacant beyond a period of 30 consecutive days immediately preceding the loss.' The insurer contends that judgment in its favor was authorized under its defenses (a) that the damage was not vandalism within the legal meaning of the word, but only the result of an illegal business carried on by a tenant; (b) that there was no coverage under a policy provision covering the described building 'occupied principally for dwelling purposes'; (c) that the building was in any event vacant 'beyond a period of 30 consecutive days immediately preceding the loss.'

(a) "Vandalism' means the destruction of property generally. General Accident & etc. Corp. v. Azar, 103 Ga.App. 215, 218-219, 119 S.E.2d 82.' Bell v. Adams, 111 Ga.App. 819, 822, 143 S.E.2d 413, 415. It must also, of course, be wilful and malicious, meaning that the act must have been intentional or in such reckless and wanton disregard of the rights of others as to the be equivalent of intent. As to malice, this may be inferred from the act of destruction. McClurg v. State, 2 Ga.App. 624, 58 S.E. 1064. Legal malice 'need not amount to ill will, hatred, or vindictiveness of purpose; it being sufficient if the defendant was guilty of wanton or even a conscious or intentional disregard of the rights of another.' Investment Securities Corp. v. Cole, 57 Ga.App. 97, 102, 194 S.E. 411, 414. It was held in Landers v. Medford, 108 Ga.App. 525, 133 S.E.2d 403, that it was an act of vandalism for a 14 year old boy to take the automobile of another, drive it at a reckless rate of speed, and wreck it. To the same effect see Unkelsbee v. Homestead Fire Ins. Co. of Baltimore, 41 A.2d 168. In Lanza Enterprises, Inc. v. Continental Ins. Co., La.App. 142 So.2d 580, the turning on of a water hose which damaged construction work was held vandalism and malicious mischief as against the contention that the act must be shown to be with specific intent to injure the property and motivated by actual malice. The court held: 'It took a deliberate act to turn on the faucet, and under such circumstances the deliberately turning and leaving the water on full force (which would obviously cause damage), evidenced the deliberate intent to damage the building.'

In the present case the tenant had been given permission to erect an addition to the house. He built a lean-to across the back in which the moonshine still was housed, then vented the contraption so that the smoke, fumes and vapor were pulled by a fan to the interior of the house. As a result of smoke and condensation the paint in the rooms peeled, plaster was loosened, rugs, drapes, and walls were stained, soiled, and covered with mold. The outside wall was charred by fire. The swimming pool adjacent to the house was used as a dump for old mash, and was stained and broken. A finding is accordingly demanded that the damage was done intentionally and wantonly by persons using the house, and therefore a finding that the acts amounted to vandalism is demanded by the evidence.

(b) The policy covered 'the building described, including additions in contact therewith, occupied principally for dwelling purposes.' There is no dispute that the five bedroom house was used and was rented as a dwelling; that during the various trips to the property by the insured, his attorney, and real estate salesmen between the end of September, 1964, and early January, 1965, there were evidences of persons living on the premises: a small girl five or six years old came out on one occasion and a woman in kimono and hair curlers on another; a car was parked beside the house; it was lit at night as a dwelling normally would be, and when entry was made in early February there were found a cot, some chairs, canned food, and fresh food in the ice box. At the time the policy was taken out the house...