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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