May v. Globe & Rutgers Fire Ins. Co.

• Decision Date: 12 June 1919
• Docket Number: 10207.
• Parties: MAY v. GLOBE & RUTGERS FIRE INS. CO.
• Court: Georgia Court of Appeals

99 S.E. 631

23 Ga.App. 798

MAY v. GLOBE & RUTGERS FIRE INS. CO.

No. 10207.

Court of Appeals of Georgia, First Division

June 12, 1919

Syllabus by the Court.

It appearing from the evidence for the plaintiff that he violated express terms of the fire insurance policy sued on and that the policy thereby became void, it was not error for the court to grant a nonsuit.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by Harry May against the Globe & Rutgers Fire Insurance Company. Judgment of nonsuit, and plaintiff brings error. Affirmed.

Colquitt & Conyers and Albert E. Mayer, all of Atlanta, for plaintiff in error.

Moore & Pomeroy, of Atlanta, for defendant in error.

LUKE J.

The contract of insurance sued on in this case provides, among other things, that--

"This entire policy, unless otherwise provided by agreement indorsed herein 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."

The insurance company in its answer alleged that this provision of the policy had been violated, and that for this reason among others, the policy was void. The plaintiff testified as to the occupancy of the building:

"There was a party in there; they moved in, but they never occupied it, and about the time the war broke out they couldn't go on, for the want of material at the time, and there was no chance for them to make good, and they didn't occupy it. They never moved in, but they had some fixtures in there, and they never moved them out; they never occupied it, and they left it."

It is conceded that at the time of issuance of the policy of insurance the building was vacant, and that it remained so until the fire, and the vacancy existed practically for six months from the date of the policy. The plaintiff contends that inasmuch as the property was vacant at the time of the issuance of the policy, the insurance company should be held to have waived the provision as to ten days vacancy of the building. It is true that where facts which under the terms of the policy would invalidate it are made known to the company at or prior to the issuance of the policy, they do not render it void. The policy in this case at the date of its issuance was not void because of the vacancy of the building, but when the building remained vacant and unoccupied for more than ten...