47 Fla. 228 | Fla. | 1904
— This writ of error is taken from a judgment in favor of defendants in error rendered by the Circuit Court of Jefferson county, in an action against plaintiff in error, upon a fire insurance policy. The policy in form is substantially the same as that set forth in the statement of facts in the case of Indian River State Bank v. Hartford Fire Insurance Company, 46 Fla. 283, 35 South. Rep. 228, except as hereinafter stated. It is dated October 14, 1899, and purports to insure Ida H. Redding for the term of one year from October 15th, 1899, “against all direct loss or damage by fire except as hereinafter provided to an amount not exceeding fifteen hundred dollars”' to the building therein specifically described. It contains
The declaration as originally drawn alleges the making of the policy, the payment of the premium, and the ownership of the property by Ida H. Redding at the time the policy was issued, and at the time of the fire. It alleges that by the policy the defendant “did insure the plaintiff Ida H. Redding for the term of one year from the said 15th day of October, A. D. 1899, at noon, to the 15th day of October, A. D. 1900, at noon, against all loss or damage by fire except as therein provided to an amount not exceeding the sum of fifteen hundred dollars” on a certain building, describing it; that “in and by its said policy the said defendant, the Hartford Fire Insurance Company, did promise and agree to pay to the plaintiff Ida H. Redding all such loss or damage as might occur to said building by fire during the period of such insurance aforesaid not exceeding the said sum of fifteen hundred dollars, sixty days after notice and proof of such loss or damage furnished to the said defendant company;” that “on the 21st day of August, A. D. 1900, and while the said policy of insurance was in full force and effect, the aforesaid building was totally and entirely lost and destroyed by fire, of which loss and destruction the said defendant had due notice,” and that “the plaintiff Ida H. Redding has rendered to the said defendant company a particular account and proof of said loss more than sixty days prior to the commencement of this action, and has otherwise fully complied on her part with all the conditions of said contract of insurance.” It further alleges that the cash value of the building was $4,000, at the time of the loss; that Ida H. Redding actually sustained loss to said amount; that the total insurance on the building was $3,000, consisting of the policy in suit “and a like policy of insurance for the sum of fifteen hun
There are other allegations in the declaration which need not be noticed further than to say that attorneys’ fees were claimed under the statute hereafter referred to. The policy was attached to and made a part of the declaration.
The defendant filed its motion to strike those allegations of the declaration claiming attorneys’ fees upon the grounds: 1. There is no law authorizing such recovery. 2. There is no law which required defendant to pay attorneys’ fees before suit brought and prosecuted. 3. There is no law authorizing plaintiff to demand such fees before suit brought and prosecuted, consequently there can be no failure to pay on which to predicate a demand and refusal. This motion was overruled, and the ruling is assigned as error.
The court at the trial instructed the jury to find for the plaintiff an additional sum as attorneys’ fees to be fixed at such reasonable amount as was shown b)’ the evidence. This instruction was excepted to and is also assigned as error.
The recovery of attorneys’ fees in cases of this character is authorized by chapter 4173, act approved June 3rd, 1893. It is contended that the statute is unconstitutional, but this court held otherwise in Tillis v. Liverpool & London & Globe Insurance Co., 46 Fla. 268, 35 South. Rep. 171, and we adhere to that decision. The second section of the statute provides that “the amount to be recovered for fees and compensation for attorneys and solicitors against life and fire insurance companies as provided in the foregoing section, shall be ascertained and fixed by the court in chancery causes, or a jury in common law actions, from testimony adduced for that purpose, and shall be included in the judg
It is further contended that the statute was repealed by chap. 4677, approved MTay 31, 1899, entitled “an act to regulate contracts of insurance of buildings and structures in this State, to fix a measure of damage in case of loss, and to prescribe a rule of evidence therein” which reads as follows: “Section 1. That from and after the passage of this act any individual, firm, corporation or association insuring any building or structure in this State against loss or damage by fire or lightning, shall cause such building, or structure to be examined by an agent of the insurer and full description thereof to be made, and the insurable value thereof to be fixed by such agent and written in the policy; in the absence of any change increasing the risk without the consent of the insurers, in case of total loss the whole amount mentioned in the policy upon which the insurers receive a premium shall be paid, and in case of partial loss the full amount of the partial loss shall be paid, but in no case shall the insurer be required to pay more than the amount upon which a premium is paid.
Sec. 2. In case of the total loss of the property insured the measure of damage shall be the amount upon which the insured paid a premium, and, in case of partial loss, the measure of damage shall be such part of the amount upon which premiums are paid as the damage sustained is part of the insurable value of the building or structure as fixed by the agent of the insurer, and the insurers shall be estopped from denying that the property insured was worth at the time of insuring the amount of the insurable value as fixed by the agent.
Sec. 4. That the defendant in any action brought upon a policy, or contract of insurance, hereafter made, or renewed, insuring any building or structure in this State, against loss or damage by fire or lightning, shall not be permitted to defend against such action, by setting up any claim, or provision of such policy, or contract of insurance, as avoiding the provisions, or any of them, of this act; and it shall be the duty of the court on motion of the plaintiff, or on its own motion, to strike out any plea setting up such defense.”
A question very similar to the one here presented was considered in Florida East Coast Railway Company v. Hazel, 43 Fla. 263, 31 South. Rep. 272, and it was held that the latter statute did not repeal the former. There is no necessary inconsistency between the two statutes we are now considering, and upon the authority of the decision in that case we hold that the act of 1893 was not repealed by the act of 1899. The motion to strike was properly denied. The instruction complained of is correct.
In this connection we will consider the contention made that the act of 1899 is unconstitutional. It is argued that properly construed the statute denies the right of the insurer to plead that the fire was caused by the criminal conduct of the insured; that the insured by fraud procured or induced the insurer to fix the insurable value at an excessive amount, and that the property depreciated in value between the date of the policy and the loss. The contention as we understand it is that the statute confines the insurer's defenses to four only, viz: that the contract was never in fact executed; that the loss set up never in fact occurred; that the loss was not due to fire or lightning; that the property insured was not in fact a building or structure in the State of Florida.
The defendant filed its demurrer to the original declaration, and the demurrer came on for hearing during a term
It is first insisted that the court erred in permitting the declaration to be amended without notice to the defendant. The rule requiring notice of applications to amend (Common Law Rule Number 12) has reference to amendments made in vacation, and not to those made in term. It is true that the demurrer in this case was submitted upon .briefs, but it was heard and decided and the amendment was permitted in term. The mere-fact that the parties chose to submit the demurrer upon briefs during the term, did not deprive the court of the power to make any appropriate order in term without requiring special notice to be given, that it could have made had the demrirrer been submitted orally or if the case had not been before the court upon demurrer at all. There was, therefore, no error in' permitting the amendment of the declaration without requiring special notice of the application to amend.
It is also contended that the court erred in depriving defendant of the right to demur to the amended declaration, by requiring it to “plead over” and in applying the demurrer to the amended declaration without a request on its part to that effect. . This court is of opinion that such
The principal questions sought to be presented by the objections to the declaration as amended depend upon the correct interpretation of certain provisions in the policy relating to notice of loss and proofs of loss, and upon the effect to be given other provisions requiring defendant’s consent for other insurance to be evidenced by endorsements upon or additions to the policy.. These provisions are substantially the same as those contained in the policy in the case of Indian River State Bank v. Hartford Fire Ins. Co., supra, as already stated except that the policy in that case provides that “if fire occur the insured shall give immediate notice of any loss,” etc., while the policy in the present case omits the word “immediate/’ Probably the omission of this word is a clerical error in copying the policy in the transcript, but the omitted word is not regarded
Having ascertained the proper construction of the provisions of the policy respecting notice and proofs of loss, we will consider the objections urged to the amended declaration, with respect to these matters. The declaration attempts to set out the legal effect of-the policy, and it also
Another objection to the declaration is that it appears therefrom that after the issuance of the policy sued on another policy was obtained from the Home Insurance Company for a like amount; that no permission to take such additional policy was endorsed in writing upon the Hartford policy, as appears from an inspection of the latter made a part of the declaration, and that consequently the policy became void under that clause which reads: “This entire policy unless otherwise provided by agreement en
The fifth ground of the demurrer complains that the declaration does not aver performance of conditions precedent generally, nor particularly the performance of each and every condition precedent, nor set up excuse for nonperformance. We have shown that the amended declaration doe's allege the issuance of the policy, the payment of the premium and the loss, and that it sufficiently alleges performance of the provisions requiring notice and proof of loss, and waiver of the requirement that permission for other insurance must be endorsed on the policy, if that can properly be considered a condition precedent. In addition to these special allegations the declaration alleges generally that plaintiff “has fully complied on her part with all the conditions of said contract of insurance.” If there are other conditions precedent not embraced in these averments they do not now occur to us, and none were pointed out either in the oral argument or briefs.
2nd. That the policy sued on provides “that the insured within sixty days after the fire, unless such time is extended in writing by the insurance company shall render a statement to the insurance company signed and sworn to by the insured stating the knowledge and belief 'of the insured as to the time and origin of the fire, and defendant avers that the time was not extended and the statement so required was not rendered.”
After plaintiff's demurrer to these pleas was overruled they filed their replication thereto alleging substantially, that on December 17, 1900, they sent by mail to defendant a statement in writing signed and sworn to by Ida H. Red-ding, the insured stating therein, among other things, “that the fire by which the insured building was, destroyed occurred about 11 P. M., August 21, 1900, originating in the roof or attic of said building, but how said fire originated or the cause thereof was to said insured entirely unknown ; that said fire did not originate by any act, design or procurement on the part of said insured, or in consequence of any fraud or evil practice done or suffered by the insured, and that any other information required by defendant would be furnished on callthat said written statement so signed and sworn to by insured was received by defendant, and by it retained until the 24th day of December, A. D. 1900, and then returned to plaintiffs with the objections only that the same had not been furnished within sixty days after the fire occurred, and no other or further information was called for by the defendant. The defendant demurred to this replication, and the order overruling it is assigned as error..
The objection to the replication as applied to the second plea is that the insured did not state in the proofs of loss her belief as to the origin of the fire. It does not appear that the insured had any belief as to the origin of the fire which she could state. She does state the time of the fire, that it originated in the attic, but how it originated, or the cause thereof, she swears was entirely unknown to her. She then proceeds to state her knowledge that it did not originate through her procurement, or in consequence of any fraud or evil practice done or suffered by her. There is no intimation anywhere that she had any belief upon the subject, and it affirmatively appears that she had no knowledge of any fact upon which to base a belief. We think the statement rendered substantially complies with the requirements of the policy. McNally v. Phoenix Ins. Co., 137 N. Y. 389, 33 N. E. Rep. 475; Howard Ins. Co. v. Hocking, 115 Pa. St. 415, 8 Atl. Rep. 592; 13 Am. & Eng. Ency. of Law, p. 336. An offer to furnish other information, if desired, was made, and as the company did not avail itself of that offer by asking other information according to the allegations of the replication, it seems evident that it did not regard the absence of the statement of belief as material at that time.
It is contended that the replication is a departure from the declaration, but we think otherwise. The declaration alleges performance with respect to the notice of loss and proofs of loss, the pleas deny the allegations of performance
Nearly a year after the pleas above considered were filed, the defendant filed its third plea, alleging that “it is provided in the contract sued on ‘this entire policy unless otherwise provided by agreement endorsed hereon or added hereto shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy,’ and defendant avers that after said policy was issued, to-wit: on the 18th day of April, A. D. 1900, the insured, Ida H. Redding, procured another contract of insurance on the property covered by the policy sued on, issued by the Home Insurance Company, which other insurance was not provided for by agreement endorsed on or added to said policy sued on.” The plaintiffs filed their replication to this plea, and defendant its demurrer to the replication, and thereupon by agreement of parties a jury was waived and the cause was submitted to the judge upon an agreed statement of facts, to be decided in vacation. This agreement was made November 20, 1902. On December 2nd following, plaintiffs moved the court for leave to withdraw their replication to the third pl'ea, and for leave to withdraw from the written submission and stipulation entered into November 20, 1902, basing the latter application upon the fact that other material testimony on behalf of plaintiffs had been discovered since the making of the agreement for submission, and because the pleadings, evidence and stipulations then on file did not fully and fairly present to the court the facts as they really existed. At the hearing it was shown that within five days after the written agreement was entered into plaintiffs notified defendant that they had discovered the existence of material facts not embraced in the written agreement, and requested that the additional matter be embraced in the agreed statement of
Under our very liberal'statute of amendments the court had ample power to permit plaintiffs to withdraw their replication and to file others. The matter rested very largely in the discretion of the court and no abuse of discretion is shown.
Nor do we perceive any impropriety in the ruling permitting plaintiffs to withdraw from the written stipulation. As defendant would not consent to amend the agreed statement of facts so as to embrace the additional matters which plaintiffs desired to incorporate therein, and as the court had not rendered its decision in pursuance of the stipulation, it was proper to permit plaintiff to withdraw from the stipulation in order that the case might take its regular course before a jury, and the parties thereby have an opportunity to present all pertinent facts. The defendant was not deprived of any substantial right by the order, it had not been misled to its disadvantage nor put to any trouble or inconvenience between the date of the submission and the plaintiffs’ motion to withdraw. The mere fact that plaintiffs might have discovered the new matter by the exercise of proper diligence before they agreed to the submission, does not as a matter of law deprive them of the privL lege of withdrawing from the submission for the case had not been decided by the court, and, therefore, the strict rule of diligence applicable to new trials for newly discovered evidence does not apply. The court had power to-
The replication to the third plea filed by plaintiffs in pursuance of leave granted alleges, among other things, that on October 15th, 1889, plaintiff, Ida H. Redding, applied to the local agent of the defendant, who was also the local agent of the Aetna Fire Insurance Company, for insurance on the building; that the agent had authority on behalf of the companies to examine the building, fix its insurable value, write, countersign and issue policies thereon, and to collect and receive the premium; that he examined the building, fixed the insurable value at $3,000, issued to plaintiff the policy sued on and a like policy in the Aetna Insurance Company, and thereupon in discharge of his duty gave defendant immediate notice in writing of the $1,500 additional insurance; that defendant with full knowledge and notice of the existence of the additional insurance consented to and accepted the risk with the purpose and intent that same should be concurrent with additional insurance of $1,500, and not avoided thereby, and with purpose and intent to waive and forego any and all benefit of said provisions and conditions-; that in faith thereof and with the sole purpose of procuring such insurance to be concurrent with additional insurance on said building to the amount of $1,500, and not otherwise, the plaintiff paid and defendant received the premium amounting to the sum of sixty dollars; that afterwards, on April 18th, 1900, the Aetna Insurance Company cancelled its policy, and in lieu and place thereof the same agent who was also the agent of the Home Insurance Company wrote, countersigned, issued and delivered to plaintiff Ida H. Redding the policy of the last named company for $1,500, mentioned in defendant’s plea; that afterwards on December 24th, 1900, plaintiff, Ida H. Redding, in her sworn proofs of loss then furnished defendant notified and fully advised it of the policy for $1,500, in the Home Insurance Company, and the defendant then and there made no claim
It is contended that the replication is a departure from the declaration. The declaration alleges that defendant had. notice of the additional insurance and facts showing a waiver with respect to the provisions relating to endorsement on the policy of permission for such additional insurance. The plea does not traverse this allegation of waiver, nor deny that defendant had notice, but asserts merely that the permission for other insurance was not endorsed upon the policy. The replication reiterates waiver and alleges specifically the facts which it is claimed constitute such waiver. The plea is not directly responsive to the material allegations of the declaration, and for that reason might, perhaps, have been held bad upon demurrer, but the replication constitutes no departure from the declaration as both allege waiver.
It is also contended that plaintiffs having already filed one replication taking issue upon this plea, could not be permitted to file another, the argument being that while the statute (sec. 1063, Rev. Stats. 1892) permits more than one plea to be filed to the declaration, the same indulgence was not, and could not with safety be extended to replications. Sec. 1059, Rev. Stats. 1892, provides that a plaintiff “may file as many replications or subsequent pleadings to any pleading of the defendant as he may desire,” and this lan
The principal contention, however, relates to the sufficiency of the allegations of the plea to show a waiver of the provision of the policy requiring the company’s permission for additional insurance to be endorsed on or added thereto, and it is strenuously insisted that the decision of the Supreme Court of the United States in Northern Assurance Company v. Grand View Building Association, 183 U. S. 308, — Sup. Ct. Rep. —, conclusively decides that question in favor of defendant. The provisions of the policy construed in- that case so far as the question now being considered is concerned, are very similar to the provisions invoked • by defendant contained in the policy sued on in this case. In that case the jury found that when the policy was issued, other insurance upon the property was in existence; that the agent who issued the policy was recording agent of the company having authority to countersign and issue policies; to accept fire insurance risks in its behalf and to collect and receive premiums therefor; that the agent knew of the other insurance when he issued the policy, and that no consent for such additional insurance was endorsed on the policy. It further appeared that knowledge • of the additional insurance was never communicated to the company until proofs of loss were made, and that the company immediately upon receipt of such information denied any liability on that ground and tendered the insured the premium paid by him. The court held that the agent’s authority in matters of waiver of condition was limited to the method designated; that is by endorsements on or written additions to the policy, and that as knowledge of the additional insurance was never acquired by the company until the loss occurred, when it immediately denied liability because of such additional insurance, and tendered the insured the premium, the company was not liable for the loss. This decision is directly in conflict with the opinions of many other courts and text writers, and several courts since it
We do not think the decision in that case, even if it is correct, controls the present one. Here we haye, not simply the knowledge of the local agent that the additional insurance existed, but the knowledge of the company itself, which with such knowledge accepted the premium, and thereby gave its consent to the additional insurance. Knowing that the additional insurance existed and that its consent thereto was required by the terms of its policy to be endorsed thereon in order to render its contract valid, it was its duty to so endorse it or decline to accept the premium which it knew was being paid for a supposed valid policy. The insured had no authority to endorse such consent on the policy, and if the company intended to act fairly and honestly and not to perpetrate a deliberate fraud by accepting the consideration for its contract known to be void, good faith required it either to endorse the policy, or to waive the provision requiring such endorsement. We can not suppose that a fraud was intended by the company, and the only reasonable conclusion is that by accepting and retaining the premium with knowledge of the additional insurance it intended to waive the provisions referred to. Clement on Fire Insurance as a Valid Contract, pp. 418, 428. In Tillis v. Liverpool & London & Globe Ins. Co., supra, we held that provisions of this nature might be waived, and the decision of the Supreme Court of the United States above referred to admits that this is so, provided the waiver is made by an officer having authority. See, also, to the same effect Aetna Life Ins. Co. v. Frierson, 114 Fed. Rep. 56; Gwaltney v. Provident Savings Life Assurance Society, 132 N. C. 925, —- S. E. Rep. —; note 9 Am. St. Rep. p. 235 ; Kerr on Insurance, p. 238. It is insisted, however, that the replication does not allege that the company knew that the
We have thus far treated the matter as if the policy mentioned in the plea constituted the additional insurance which existed at the time the policy in suit was issued, but the fact is not precisely that. The insurance in force when the policy was issued consisted of a policy in the Aetna which was afterwards cancelled and another issued in lieu thereof in the Plome. The latter policy, however, was merely a substitute for the former, being issued for the same amount. We are of opinion that this substitution of one policy for the other does not constitute a breach of the condition against other insurance, for the defendant by accepting the premium for the policy in suit with knowledge of the additional insurance then existing, thereby gave its consent for additional insurance to the amount then in existence for the full period of its own policy. The mere substitution of one policy for another of the same amount was permissible under that consent. See Stage v. Home Ins. Co. of the City of New York, 76 App. Div. 509. Evidently the defendant did not regard the Home policy as having been taken without its consent, for according to the allegations of the replication it made no objection to the proofs of loss on that account, and in its plea there is no denial that it had due notice of the additional insurance.
Several objections to testimony offered at the trial were interposed by defendant which we will now consider. The proofs of loss were objected to on several grounds which
For the purpose of proving defendant’s knowledge of the additional insurance the daily report sent by its agent to the defendant on the day the policy in suit was issued, was introduced in evidence by the plaintiffs, over certain objections interposed by defendant. This daily report was made up in pursuance of instructions to the agent to “give full copy of the policy” as well as other information, and it gives the written portions of the policy issued with the endorsement slips. In answer to questions propounded the agent stated that the company had no other policies in or on the same building, but in another place he stated there was $1,500 additional insurance on the property, and being required to “name” companies, amounts and rates he stated: “Hartford” which was evidently a clerical error in view of his other statement already referred to. It is contended that this report did not advise the company that there was any additional insurance upon the property, and even if it did, the additional insurance was stated to exist in the same company, which was not the truth. We think the report clearly advises the company that there was $1,500, additional insurance. Besides the plea does not deny the fact of knowledge. The conflicting statements in the daily report about its being in the same company put the defendant upon notice that some mistake had been made as to this matter, and it could easily ascertain by reference to its own records which statement was true. There was no uncertainty as to the fact that other insurance existed, which was the important matter for the company to know. The name of the company carrying the additional insurance was not required by the policy to be stated in the written consent. There was no error in admitting in evidence the daily report.
The court gave the general charge to find for the plaintiffs, to which an exception was taken. The defendant introduced no testimony, and without encumbering this opin
The judgment is affirmed.
Shackleford and Whitfield, JJ., concur.
Taylor, C. J., and Hocker, J., concur in the opinion.
Cockrell, J., being disqualified, took no part in the decision of this case.