57 Fla. 191 | Fla. | 1909
This writ of error was taken to a judgment recovered upon a fire insurance policy. The policy insured a one story “shingle roof frame building, while occupied for the following purposes: Geni. Mdse., Groceries and Soda Fount.” Among the pleas presented were the following:
“2. And for a second plea the defendant says, that said insurance on said building was expressly limited
3. And for a third plea the defendant says, that the alleged contract declared on called a policy, contains the provision -that the premises indemnified against loss by fire during the life of said policy should be used and occupied only as a store for the purpose of carrying on a general merchandise, grocery and soda fountain business; and that after the issuance of said alleged policy and prior to the time of said alleged fire, the premises were used and occupied as a public dance hall.”
A demurrer to these pleas was sustained with leave to amend.
Subsequently the following pleas were filed:
“6. And for its sixth plea the defendant says, said insurance policy No. 2106 covered said building only while occupied for certain purposes, to wit, general merchandise, groceries and soda fount,’ as limited in said policy, and said building at and before the said- fire and after the iss-uanoe of said policy was occupied for a negro dance hall,' and a negro gathering and dance were had in said building on the night of and shortly before the fire described in the declaration, and thereby said policy became and was and is void.
7. And for a seventh plea the defendant says, that said insurance policy No. 2106 covered said building while occupied for certain purposes, to-wit, 'general merchandise, groceries and soda fount’ as limited in said policy, and said building' at and before the said fire and after the issuance of said policy w.as not occupied for the purposes aforesaid and was occupied for a negro dance hall.”
The averment of the second plea that “said building was used for a gathering of negroes, to-wit, at a public dance or other gathering, and was so used during the evening just shortly before the said fire,” does not sufficiently negative liability under the policy for the burning of the building “while occupied for the following purposes : Geni Mdse., Groceries and Soda Fount.” The use of the building as set out in this plea does not necessarily show a use not contemplated by the terms of the policy, or that the building was not occupied as required by the policy at the time of the fire. The building may have been “occupied for the purposes of general merchandise, groceries and soda fount,” even though as stated in the plea “said building was used for a gathering of negroes * * * and was so used during the evening just shortly before the said fire.” The use of the building as stated in the second plea may have increased the hazard and -thereby affected the liability as provided in another section of the insurance policy; and this defense is presented in other pleas allowed by the court. The demurrer was properly sustained to the second plea.
The sixth plea filed in lieu of the second plea and stricken, contains averments not in the second plea, and may or miay not be sufficient in substance if properly tested by demurrer, but it does not appear to be subject to a motion to strike.
The demurrer to the third plea was properly sustained. It does not aver that at the time of the fire the building was not occupied for the purposes stated in the policy. The seventh plea was filed under an order of the court allowing an amendment of the pleas and it contains material averments that -are not in
The judgment is reversed.
All concur.
