DocketNumber: No. 16753.
Citation Numbers: 176 So. 895
Judges: JANVIER, Judge.
Filed Date: 11/15/1937
Status: Precedential
Modified Date: 1/11/2023
The policy sued on is what is known as the New York Standard Form of Fire Insurance, which is the only form of fire insurance policy permitted in this state, Act No.
The defendant's policy contains the proviso as required by the Act of 1914. One of the suspensive conditions in the policy relates to the ownership of the property, which must be "unconditional and sole ownership" to prevent the interruption of coverage by the insurer. The argument of counsel concerning the breach of conditions precedent and conditions subsequent having the effect of rendering the policy void or voidable would appear groundless in view of the statutory and policy provision to the effect that such breach shall only suspend the operation of the policy. *Page 907
The majority opinion holds that the suspension of the policy because of the breach of the condition concerning ownership was not sufficient in and of itself to prevent recovery, and, therefore, the case could not be disposed of on the exception of no cause of action. However, it is said that such breach has increased the moral hazard because there was a mortgage on the property which was subsequently foreclosed. I concede that the preponderance of the authority is to the effect that a mortgage increases the moral hazard. However, see our opinion in Peterson v. Pacific Fire Insurance Company, 148 So. 283. Our Supreme Court has held that the question is one of fact to be determined in each case. Knowles v. Dixie Fire Ins. Co.,
For these reasons I cannot agree with that portion of the majority opinion which holds that plaintiff may not recover for the loss of his dwelling, and, to that extent, respectfully dissent.