Price v. Southern Home Ins. Co. of the Carolinas
| Decision Date | 28 July 1930 |
| Parties | PRICE v. SOUTHERN HOME INS. CO. OF THE CAROLINAS. |
| Court | Florida Supreme Court |
Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.
Action by Mary A. Price, a widow, against the Southern Home Insurance Company of the Carolinas, a foreign corporation. Judgment for defendant, and plaintiff brings error.
Reversed.
Charles J. Schuh and Van Fleet, Collins & Miller all of St. Petersburg, for plaintiff in error.
Sutton Tillman & Reeves, of Tampa, for defendant in error.
H. T Nelson owned lot No. 98 on the north side of Thirty-Fifth Street North in Belvediere subdivision, St. Petersburg, Fla. The size of the lot was 40 feet front by 135 feet deep. There were located on the lot one five-room bungalow on the south end and a three-room bungalow and garage on the north end. The garage was connected with the three-room bungalow by a narrow lattice in the form of an arch. The distance which separated the small building from the garage was only about 2 feet. All the buildings were one-story structures. On the 10th day of December, 1925, Nelson took out a three-year fire insurance policy in the Southern Home Insurance Company in the sum of $5,000 distributed as follows: $3,500 on the story frame building occupied by the owner as a dwelling house and $1,500 on the 'frame building with approved roof and its additions, situate on above described premises, including foundations and occupied as Servants' House.' Later the amount of insurance secured by this policy was in consideration of an additional premium of $23.65 increased $2,000 as follows: and '$2000.00 on the two story, frame, approved roof Garage Building on premises described in Policy.'
The building located on the rear of the lot and described in the policy as a 'Frame building, with approved roof, and its additions, situate on above described premises, including foundations, and occupied as a Servant's House,' was the three-room cottage with garage attached. It does not appear to have been used as a 'Servants' House' at all and may just as accurately have been described as the 'approved roof Garage Building.' It was not, however, a two-story building, which fact may be assumed to have been known to both insurer, through its agent, and the assured.
The valuation clause of the policy provided that the 'insurable values of the buildings herein described are fixed at the following amounts: Dwelling, $4000.00; Servants' House, $2000.00; Barn, $-----.'
The valuation clause constituted one of the conditions upon which the insurance was effected and constituted a warranty 'by the assured' and was 'accepted as part of this contract,' presumably by the insurer.
About six months after the policy was issued, Nelson and wife conveyed the property to Mary A. Price, the plaintiff in error here. Seventeen days after the conveyance of the property by Nelson to Mrs. Price, the insurance company agreed to the assignment of the policy to Mrs. Price in the following words: 'The Southern Home Insurance Company of the Carolinas, hereby consents that the interest of H. T. Nelson as owner of the property covered by this Policy be assigned to Mary A. Price.'
On the 6th of August, 1928, the three-room cottage with garage attached was injured by fire. The garage was totally destroyed and the west end of the cottage to which the garage was attached was damaged. The fire occurred about four months prior to the expiration of the policy. The insurance company disclaimed any liability and Mrs. Price brought her action against the company on the policy of insurance.
At the conclusion of the testimony for the plaintiff, counsel for the insurance company moved the court for a directed verdict in its behalf on the grounds: First, that the plaintiff had failed to produce any evidence to entitle her to recover; second, that the evidence showed a material variance between the allegations of the declaration and the evidence adduced; and, third, that the plaintiff had failed to make out a prima facie case against the defendant. The motion was granted, and the jury was directed to return a verdict for the defendant, which it did.
A motion for a new trial was made and overruled, and the plaintiff took a writ of error.
Whatever variance existed between the declaration and the evidence consisted in the fact that the 'frame building with approved roof and its additions, situate on above described premises, including foundations and occupied as a Servant's House' as originally described in the policy, the 'two story, frame, approved roof Garage Building, on premises described in Policy,' as referred to in the increased value clause, was not a 'two story garage.' In the valuation clause the cottage and garage was referred to as 'Servants' House.'
There was no material variance between the declaration and the evidence.
The property insured was the small cottage with garage attached described in the policy as a frame building and its additions as first written; as a 'two story, frame, approved roof Garage Building' in the increased insurance indemnity clause, and as 'Servants' House' in the valuation clause. It is apparent from the words of the policy, which was attached to the declaration and made a part of it, that the mind of the insurer and that of the assured met upon the proposition that the three-room cottage and garage attached a two units structure; the cottage and garage addition should be insured against damage by fire. It was in the insurer's own language variously referred to and described as a 'frame building, with approved roof, and its additions,' a building occupied as a 'Servants' House,' a 'two story, frame, approved roof Garage Building,' and as 'Servants' House.'
The insurer is presumed to know the character of buildings which he insures. He is concerned not so much with their architecture or design as with their value. It is upon the estimated value of the building and the material of which it is constructed that the insurance rate is agreed upon. Whether the building is a one-story or two-story structure, whether a one-unit or two-unit building, a 'Garage Building' or 'Frame building and its additions,' is a matter of description or identification of the structure covered by the policy. The insurer chose his own words to describe the building which he agreed to insure against damage by fire, and now seeks to avoid liability because he described the structure as a two-story building instead of a one-story building. He agreed that the value of that 'Garage Building' for purposes of insurance was $2,000 and wrote a policy of insurance upon that basis and accepted the applicable premium of his own fixing therefor.
In the policy as originally written the building was referred to and described as a 'frame building, with approved roof, and its additions.' As thus written there could be no question that the building destroyed, as well as the one injured, were covered by the policy. In fire policies on buildings it is customary to describe the subject of the insurance as a 'building and additions.' In determining what are additions, the intention of the parties is the real...
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