American Fire Ins. Co. v. King Lumber & Mfg. Co.

Decision Date20 October 1917
Citation77 So. 168,74 Fla. 130
CourtFlorida Supreme Court
PartiesAMERICAN FIRE INS. CO. v. KING LUMBER & MFG. CO.

On Rehearing, November 5, 1917.

Error to Circuit Court, De Soto County; F. A. Whitney, Judge.

Action by the King Lumber & Manufacturing Company against the American Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

We copy the following statement from the brief of the plaintiff in error, which the defendant in error says in its brief is 'a fair and correct statement of the pleadings which made up the issues in the case that was tried before the court below and which is now before this court for its consideration':

'The King Lumber & Manufacturing Company, hereinafter referred to for the sake of convenience as the Manufacturing Company, sued the American Fire Insurance Company hereinafter referred to as the Insurance Company, upon two policies of insurance. The policies, as well as the proofs of loss submitted, were made parts of the declaration, from which it appears that there were 12 separate items insured of which loss is claimed only on account of items numbered 2, 5, 6, 8, 11, and 13. It further appears that there was total concurrent insurance on the property to the amount of $45,750, and the policies contain the usual pro rata agreement in such cases.
'Item 5 is a building the insurable value of which is fixed at $2,500. Items 2, 6, and 8 relate to machinery, tools, boilers, etc. Items 11 and 13 relate to manufactured product on hand.
'To the declaration the defendant filed two pleas as follows:
"(1) That at the time of the execution and delivery of the policies sued on, and each of them, and at the time the said policies went into force, the defendant was a corporation organized and existing under the laws of the state of Pennsylvania, and was not engaged in the transaction of business in the state of Florida, and had not secured a permit to do business in the state of Florida as a fire insurance company, and had no agent or representative in the state of Florida, and the said policies were made, executed, and delivered in the state of Pennsylvania, and secured in the state of Pennsylvania by the plaintiff through the firm of Lowry & Prince, of Tampa, Fla., as brokers of the plaintiff, and the defendant required to be inserted in and stamped on the face of the said policies a provision in the following words, to wit: 'Warranted same gross rate, terms, and conditions as and to follow the American Central Insurance Company, of St. Louis, Mo., and that said company has, throughout the whole time of this policy, at least $5,000 on the identical subject-matter and risk and in identically the same proportion on each separate part thereof; otherwise this policy shall be null and void'--and prior to the time of the alleged loss in the said declaration mentioned, but without the knowledge of the defendant, the said American Central Insurance Company, of St. Louis, Mo., had canceled its policies on the property insured, and at the time of the loss alleged did not carry $5,000 or any other amount on the identical subject-matter and risk, and prior to the institution of suit the defendant requested of the plaintiff the date of the cancellation by the said American Central Insurance Company, of St. Louis, Mo., of its insurance on the premises, and offered to refund the unearned portion of the premiums on the policies sued on from the date of such cancellation, but the plaintiff failed and refused to furnish or give to the defendant the date of such cancellation, and the defendant hereby tenders and offers to pay to the plaintiff the amount of the unearned premiums from the date of such cancellation, upon being advised of the date thereof, of which the defendant is now ignorant.

"(2) And for a second and further plea the defendant says: That at the time of the execution and delivery of the policies sued on, and each of them, and at the time the said policies were expressed to go into force, and at the time of the plaintiff's loss, the entire property insured, including all of the personal property insured, was subject to and incumbered by the mortgage to W. G. Welles set forth in the plaintiff's proofs of loss, annexed to the said declaration, on which there was due a large sum of money, the existence of which mortgage was unknown to the defendant until the said proofs of loss were furnished it, whereby the said policies, according to the terms thereof, became null and void.'

'The plaintiff filed a demurrer to the second plea, which the court sustained, and replications to the first plea, to which the court sustained a demurrer. Plaintiff then filed the following amended replications:

"First. That it denies that at the time the said policies went into force, and were executed and delivered, that the defendant was not engaged in the transaction of business in the state of Florida, but states the fact to be that at that time, and as far back as 1908, the defendant was transacting business within the state of Florida, and was in fact transacting business with the plaintiff. That on April 14, 1908, the defendant, through Lowry & Prince, of Tampa, Fla., assumed a risk by a policy of fire insurance on part of the property of the plaintiff, described in the policies sued on herein, and that the said policy of April 14, 1908, so written by the said defendant, was from time to time renewed and kept in force, and additional insurance was written on said property, and finally in 1912 policies sued on in this cause were written, and that defendant, before accepting the risk provided for by the first policy written in 1908, consulted with Lowry & Prince as to the nature of the risk assumed, and from time to time, from April 14, 1908, to the date of the fire, consulted and advised with Lowry & Prince as to the physical condition of your repliant's property, and as to the advisability of assuming a risk thereon, and relied upon the said Lowry & Prince for its information on this subject. And repliant further shows that the said Lowry & Prince caused the defendant to write the said first policy of 1908, and said Lowry & Prince caused and procured the defendant to renew said policy from time to time, and to finally write and issue policies here sued on, covering repliant's property, and that repliant, from 1908 to the date of the policies here sued on, paid unto the said Lowry & Prince premiums charged by the said defendant for said policies, and said premiums were forwarded by the said Lowry & Prince, less their commission, which commission was allowed by the said defendant, to the said defendant, and that, at the time the policies sued on herein were delivered to repliant, repliant paid the premium charged by the said defendant therefor to Lowry & Prince, and the said Lowry & Prince forwarded the said premium to the said defendant.
'Therefore repliant also denies that said defendant, at the time of the execution and delivery of the policies sued on, had no agent or representative in the state of Florida, but states the fact to be that Lowry & Prince, who procured and caused said policies to be written, who collected the premiums and forwarded the same to the defendant, were the agents of the defendant.
"Second. For a further replication to said first plea, repliant says that it is true that the two fire insurance policies sued on in this cause contained the warranty set out in said plea. Repliant states the fact to be that Lowry & Prince, the agents of the defendant as aforesaid, when they delivered the policies so sued on to repliant, called repliant's attention to said warranty clause, and stated to repliant that said clause would not affect repliant, and should be disregarded by repliant, and gave as their reasons why said warranty clause should be disregarded that the repliant had at that time in the American Central Insurance Company, of St. Louis, Mo., $6,500 of insurance, covering the items insured by the policies of the defendant sued on herein.
"Repliant further says that it at that time was carrying a large amount of insurance, approximately $45,000, in various companies, and that it did not keep up very closely with the amount of insurance that it had in any particular company, being careful only to keep the total amount approximately $45,000, in reputable oldline companies, and that it therefore relied upon the representation of the said Lowry & Prince, who stated that they had investigated the policies of repliant in the said American Central Insurance Company, of St. Louis, Mo., and that repliant had $6,500 of insurance as aforesaid.
"Repliant further says that, relying upon the representation of said Lowry & Prince, agents of the said defendant, and relying upon their instructions to disregard said warranty, repliant accepted said policies, and paid the said Lowry & Prince the premium therefor, charged by the said defendant.
"Third. Replying further to said first plea repliant says: That some time prior to July 25, 1912, Lowry & Prince, as agents of the defendant aforesaid, notified repliant that the American Central Insurance Company, of St. Louis, Mo., was desirous of canceling its policy No. 303149, in the sum of $1,500, and suggested to repliant that there be substituted for the lastmentioned policy a policy in a like sum in the People's National Fire Insurance Company of Philadelphia. This information coming from the said Lowry & Prince, the agents of the defendant, and this suggestion having been made by the agents of the defendant, repliant agreed to the cancellation of the said policy, and the substitution of a policy with the People's National Fire Insurance Company of Philadelphia.
"Repliant further says that some time prior to October
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