79 Fla. 408 | Fla. | 1920
This suit was instituted in the Circuit Court for DeSoto County for the reformation of a policy of fire insurance and the payment of the liability thereunder.
A demurrer to this bill was sustained upon the ground that the bill showed no right in complainant to the reformation of policy No. 149103. The demurrer also attacked the bill upon the ground that it contained no equity, and that it was vague and uncertain. But the order sustaining the demurrer stated that it was overruled as to all other grounds, and that “complainant is allowed to plead instanter. Defendant given to Rule day in April to plead or answer.”
The complainant then filed his “amended” bill. This amended bill differed from the first one filed only in the prayer. The amended bill omitted from the prayer reference to the original policy of insurance No. 149103. In this particular only is there any difference in substance between the two bills.
The cause was referred to a special master to take testimony and report the same. Upon the report coming in the chancellor rendered ai final decree ¡declaring the equities to be with the complainant, that he was the conditional owner of the property and' in possession of it in 1915, that both complainant and the Real Estate Company had an insurable interest in it, that in October, 1915, defendant insured the property against loss by
From this decree defendant appealed and assigned as error the overruling of the demurrer in part and in finding the equities of the case to be with the complainant, and in rendering the decree in favor of the complainant.
While it is true that there was no demurrer to the amended bill, yet that bill contained the same allegations as the one which was first filed and to which a demurrer at lacking its equity was interposed. If there was on equity in the first bill there was none in the amended bill; so if the court erred in overruling the demurrer to the first bill the decree was necessarily wrong as resting upon a complaint containing no ground
The bill contained' - sufficient allegations of fact to entitle the complainant to the reformation of a policy of insurance, had one been issued- in the matter of the clause providing that the policy should be void if the insured did not own the fee simple title. The allegations were also sufficient to show a waiver by the company of the title clause and to entitle the complainant to recover upon the policy because of his insurable interest. Fraud is not the sole ground upon which a .policy of fire insurance will be reformed. Mutual mistake is a sufficient ground upon which to grant ’such relief. See Southern States Fire Ins. Co. v. Vann, 69 Fla. 544, 68 South. Rep. 645; Fidelity Phenix Fire Ins. Co. of New York. v. Hilliard, 65 Fla. 443, 62 South. Rep. 585; Phenix Ins. Co. v. Hilliard, 59 Fla. 590, 52 South. Rep. 799; Taylor v. Glens Falls Ins. Co., 44 Fla. 273, 32 South. Rep. 887.
Under the circumstances alleged in the bill and admitted by the demurrer the intention of the parties to the contract of insurance was that the defendant would insure the complainant’s house against loss by fire, notwithstanding he did not own the fee simple title to the lot on which it stood, and held only the equitable title to the property; any other construction of the intention of the company or its agent would impeach its or his good faith and honesty of purpose.
The demurrer therefore admitting* the issuing of the policy and the circumstances under which it was issued was properly overruled.
The amended bill prays for the reformation of the new policy which it is alleged was issued in the manner and under the circumstances alleged, but the answer specifically denied the issuing of the policy and the payment by complainant of the premium on such a policy. While the bill waives oath to the answer it was nevertheless necessary to recovery that the complainant should establish the truth of the material allegations of fact upon which he bases his right to relief. See Lykes v. Beauchamp, 49 Fla. 333, 38 South. Rep. 603; Parken v. Safford, 48 Fla. 290, 37 South. Rep. 567; Indian River Mfg. Co. v. Wooten, 55 Fla. 745, 46 South. Rep. 185; Watson v. Bair, 73 Fla. 255, 74 South. Rep. 317; Fidelity Phenix Fire Ins. Co. v. Milliard, supra. And these material allegations must be supported by at' least a preponderance of the evidence in cases where the oath to-the answer is waived. All the material allegations of: the bill, with the single exception of the actual issuing by the company and retention by Mr. Brown, its agent, of the new policy sought to be reformed, or his agreement to issne the same, if that is material, may be considered' to be established by' the testimony, but that allegation and the finding by the court that “on or about October 20th, 1915, the said defendant insured the said'.
The case made by the bill and the evidence therefore is one based upon an executory contract to insure in the future. It appears from the evidence that the defendant did insure the complainant’s house for one thousand dollars for a period of one year from December 2, 1914, that the policy actually issued was numbered 149102 and expired December 2, 1915, and the policy was retained by the agent, Mr. Brown, in his possession and never delivered to the complainant. We think the chancellor's finding that Mr. Brown knew of the character of complainant’s title to the property when the policy was issued was supported by the evidence. The complainant in fact did hold the equitable title to his property, having purchased the lot and made nearly all the payments of the purchase price thereon and liad erected a dwelling house upon it which he occupied as his home. The chancellor found that the agent was aware of these facts and we are unable to say that such finding appears to be clearly erroneous. The complainant’s interest in the property, however, was an insurable one and the defense that he did not hold the legal title seems under the circumstances to be destitute of equity.
Now just prior, about one month and a half, to the expiration of the policy the complainant applied for a renewal of insurance and paid to the agent the premium
Considering the pleadings and the evidence and the chancellor’s findings thereon, we are forced to the conclusion that a contract for a policy of insurance to be issued to complainant on the expiration of policy No. 149103 and to .run for one year in the same form upon complainant’s house of which he was the equitable owner was made; that the house was totally destroyed' by fire in March, 1916, and proof of loss submitted, and that the premium for such insurance was paid to the agent and retained by him.
“That an insuarnce company can by a preliminary parol contract bind itself to issue or to renew a policy in the future seems too well settled to admit of doubt.’’ See McCabe v. Aetna Ins. Co., 9 N. Dak. 19, 81 N. W. Rep. 426; Benner v. Fire Ass’n. of Philadelphia, 229 Pa. St. 75, 78 Atl. Rep. 44; Phoenix Ins. Co. of New York v. Ryland, 69 Md. 437, 16 Atl. Rep. 109, 1 L. R. A. 548; Eames v. Home Ins. Co. of New York, 94 U. S. 621, 24 L. Ed. 298.
There seems to be sufficient evidence to establish Mr. Brown’s authority as agent of the defendant company to solicit insurance, accept risks and to issue and renew policies.
The decree of the chancellor should therefore be affirm' ed because the complainant had a right to specific performance of the agreement to insure and the propriety of decreeing full relief by decree of payment of loss is established'. Phenix Ins. Co. v. Ryland, supra.