First National Fire Insurance of United States v. Burnett

Citations

• 79 Fla. 424
• 84 So. 382

Syllabus

<p>1. The clause in a New York Standard Policy of Fire Insurance that “This policy shall be cancelled at any time at the reguest of the insured; or by the company giving five days’ notice of such cancellation; if this policy shall be cancelled as herein-before provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when tljis policy is cancelled by this company by giving notice, it shall retain only the pro rata premium.” Construed.</p> <p>Held: That where an insurance company seeks to cancel a policy by giving five days’ notice, the return or tender by the company of the unearned portion of the premium is a condition precedent to the cancellation- of the policy.</p> <p>2. Under a provision in the policy for the return of the pro rata portion of the unearned premium when the policy is cancelled by the company by giving notice, a draft drawn by the insurance company upon itself is not a sufficient payment or tendel, in the absence of anything to show that the insured waived his right to require the return or tender of the unearned portion of the premium.</p> <p>8. In the absence of an averment in a plea that the insured accepted the company’s draft drawn on itself or did any act that would show a waiver of his right to require the return or tender of such unearned portion, a demurrer to the plea was properly sustained.</p> <p>4. Where a plea in an action on a fire insurance policy sets out the stipulation that it would be void “if the hazard be increased by any means within the control or knowledge of the insured,” and avers a breach thereof by plaintiff, in that he removed from the premises, and by his own act changed the occupancy from that of owner to tenant occupancy, and thereby increased the risk of loss and damage in the insured property and the hazard of the defendant; and the replication admits the