23 Fla. 193 | Fla. | 1887
The Chief-Justice delivered the opinion of the court:
The defendants in error, B. C. Lewis & Sons, commenced an action in the Circuit Court of Leon county against the plaintiff in error, The Hanover Pire Insurance Company, on a policy of insurance. The language of this policy, so far as it is essential to a decision of this case, is as follows: “$5,000. Underwriters’ Policy. Ho. 20,195. By this Policy of Insui’ance The Germania Fire Insurance Company and the The Hanover Fire Insurance Company, each of the City of Hew York, each acting and contracting for itself, and not one for the other, in consideration of one-half part of the sum of one hundred dollars to each of them paid by the assured hereinafter named, do each insure B
The defendant then, upon cross-examination, asked the-said witness what was the writing that he or the firm of B. C. Lewis & Sons had put in the said blank forms ? but to the said question the attorney for the plaintiffs objected and the said court did deliver its opinion and decide to exclude the said question and it was thereupon excluded. To which ruling of the court defendant excepted. This was all the evidence. The defendánt corpóration demurred to-the evidence—the plaintiffs joined therein and the jury were discharged. The Judge found the issues in favor of the plaintiffs, assessed the damages and rendered a judgment against the defendant corporation. The issues which were presented by the pleas of the defendant corporation, excepting the affirmative pleas, which are not involved here, the defendants having introduced no evidence to sustain them, are in effect the general issue, and that the plaintiffs had not given notice of loss in accordance with the requirements ©f the policy of insurance sued on. Under the rule applicable to demurrers to evidence which admits the truth of the testimony demurred to, and every reasonable inference that may be deduced therefrom, we are of the opinion that the court below was correct in determining those issues in favor of the plaintiffs. The court, however, went further and asssessed
With regard to the proofs of loss which plaintiffs claimed were in the possession of the defendant corporation, we think that a notice should be served on the defendant to produce them, and if it fails to do so that secondary evidence of their contents may be introduced. Greenleaf’s Evidence, 560; McFadden vs. Kingsbury, 11 Wendell, 667; Fairbault vs. Ely, 2 Dev. Rep., 67, 68.
In the absence of such notice to produce, secondary evidence of the contents is inadmissible.
Judgment reversed and a venire de novo awarded.