Citizens Ins. Co. v. Barnes

• Decision Date: 20 November 1929
• Citation: Citizens Ins. Co. v. Barnes, 98 Fla. 933, 124 So. 722 (Fla. 1929)
• Parties: CITIZENS' INS. CO. v. BARNES et al.
• Court: Florida Supreme Court

124 So. 722

98 Fla. 933

CITIZENS' INS. CO. v. BARNES et al.

Florida Supreme Court, Division B.

November 20, 1929

Error to Circuit Court, Santa Rosa County; A. G. Campbell, Judge.

Action by B. Barnes and others against the Citizens' Insurance Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Brown J., dissenting.

Syllabus by the Court

SYLLABUS

Fire policy describing building as 'ironclad frame building with metal roof,' precluded insurer asserting building was not frame building within ordinance regulating repairs. Where suit is brought on an insurance policy for loss occasioned by fire, and the evidence shows that part of one wall of the building was composed of brick and that the remainder of the building was composed of wood framing covered on the sides with sheet iron and a composition roof and further shows that the building was described in the policy constituting the basis of the suit as 'two-story ironclad, frame building with metal roof' (italics ours) and that the building was damaged by fire to the extent of more than 50 per cent., such building is held to come within the purview of a city ordinance as follows: It shall be unlawful to repair any frame building when damaged by fire other casualty or decay to the extent, in the opinion of the Building Inspector, of 50% of what it would cost to build a new building of like character; provided all repairs to such roof shall be of metal, slate or other incombustible material. If the owner of such building shall object to the decision of the Building Inspector, the question shall be settled by three disinterested persons, one to be chosen by the Building Inspector, one by the owner of the Building and the two thus chosen shall select the third. A decision of the majority of the persons thus chosen shall be conclusive and final.' [Ed. Note.--For other definitions, see Words and Phrases, First and Third Series, Frame Building.]

Ordinance making it unlawful to repair frame building damaged more than 50 per cent. applied to two-story, ironclad frame building with metal roof. The ordinance applies to any frame building and therefore must be held to apply to that kind of frame building which was described in the policy here sued on.

Ordinance making it unlawful to repair frame building damaged to extent of 50 per cent. held valid police regulation. Ordinances such as that above referred to are universally held to be valid and binding police regulations.

Ordinance making it unlawful to repair frame building damaged to extent of 50 per cent. constitutes part of fire insurance contract binding insurer; presumption is that parties contract with reference to existing statutory limitations and requirements. Such ordinances are a part of the contract of insurance, and the insurer is bound thereby. This is in line with the general doctrine that, where parties contract upon a subject which is surrounded by statutory limitations and requirements, they are presumed to have entered into their engagements with reference to such statute, and the same enters into and becomes a part of the contract. There would seem to be no logical reason why this general rule should not apply to a case of this kind. The parties are presumed to know of the ordinances. They directly and materially affect their rights in case of a loss under the policy, and should govern and control in the adjustment and settlement of such loss.

COUNSEL

Wm. Fisher, of Pensacola, for plaintiff in error.

Watson & Pasco & Brown, of Pensacola, for defendants in error.

OPINION

BUFORD J.

In this case the Citizens' Insurance Company issued a policy of $2,000, two other companies issued policies of $1,000 each, making an aggregate of $4,000, insuring a building in Milton, Fla., against loss by fire. In May, 1927, when all these policies were in full force and effect, the building was damaged by fire. Proof of loss was filed, and, upon no agreement being reached between the insurance companies and the insured, suits were brought.

A plea was filed setting out a partial loss instead of a total loss, and on such plea the issue was tried. The question was whether the building was either an actual or constructive total loss and the plaintiffs thereby entitled to recover the full amount of the policies, or whether there was only a partial loss, and, if so, the amount of the loss.

When the cause came on for trial, the plaintiffs introduced evidence. The defendant offered no testimony. On motion, the court ruled and held that the building was a constructive total loss and directed a verdict in favor of the plaintiff and against the defendant for the full amount of the policy with interest and attorney's fees. The verdict was for $2,080, together with $208 attorney's fees, making in all $2,288.

The record shows that the damage did not cause an actual total loss. But, it is contended on the one hand that it constituted a constructive total loss, and, on the other hand, that it only constituted a partial loss. It appears from the record that a part of one wall of the building was composed of brick, and that the remainder of the building was composed of wood framing covered on the sides with sheet iron, and some sort of a composition roof. The building was described in the policy constituting the basis of this suit as the 'two-story iron clad frame building with metal roof.' (Italics ours.)

The plaintiff in error here, defendant in the court below, contends that the building was not a frame building and therefore did not come within the purview of the ordinance of the town of Milton, the pertinent part of which was in the following language:

'It shall be unlawful to repair any frame building when damaged by fire, other casualty or decay to the extent, in the opinion of

...