Cosmopolitan Fire Ins. Co. v. Putnal

• Decision Date: 25 June 1910
• Citation: 60 Fla. 41,53 So. 444
• Parties: COSMOPOLITAN FIRE INS. CO. v. PUTNAL.
• Court: Florida Supreme Court

53 So. 444

60 Fla. 41

COSMOPOLITAN FIRE INS. CO. v. PUTNAL.

Florida Supreme Court, Division B.

June 25, 1910

Headnotes Filed November 7, 1910.

Error to Circuit Court, Taylor County; B. H. Palmer, Judge.

Action by J. A. Putnal against the Cosmopolitan Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

See also, 52 So. 1039.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

If a plea is to the whole declaration, or to any part thereof, it must be good for the whole, or the entire part which it purports to answer; for, if bad as to a part, it will be wholly bad on demurrer, even for that which it in fact answers. And if the plea is not confined to a particular part, it will be taken as a plea to the whole declaration.

The allegations of a plea in a common-law action should be stated positively, and not upon information and belief; and if its allegations are predicated on information and belief, it will be subject to demurrer.

Rule 68 for the circuit courts expressly forbids a plea of nil debet in any common-law action.

If a review of the refusal of the trial court to permit the defendant to file a demurrer or additional plea is desired those papers should be evidenced to the appellate court by a bill of exceptions; otherwise, such review cannot be had.

Motions for continuance of a cause, and the affidavits in support thereof, the ruling of the court thereon, and the exception to such ruling, must be evidenced to the appellate court by a bill of exceptions; otherwise, it cannot be considered by such court.

COUNSEL Frazier & Mabry and Hendry & McKinnon, for plaintiff in error.

Thomas B. Adams and W. B. Davis, for defendant in error

OPINION

TAYLOR J.

The defendant in error, as plaintiff below, sued the plaintiff in error, as defendant below, in the circuit court of Taylor county, for recovery upon two policies of fire insurance; the first court of the declaration declaring upon a policy insuring against loss upon a stock of merchandise and store furniture and fixtures, and the second count declaring upon a policy upon a storehouse or building. The third count of the declaration alleged that necessity of plaintiff's employment of counsel to collect said policies, and claimed attorney's fees.

To this declaration the defendant insurance company filed the following pleas:

'Now comes the defendant in the above-entitled cause, by its attorneys, Hendry & McKinnon and Frazier & Mabry, and for pleas to plaintiff's declaration says:

'First. That plaintiff ought not to maintain his aforesaid cause of action, for the reason that he has not complied with the terms of his policies sued upon herein, in that he has never made the required proof of loss under the said policies as required therein, nor complied with the terms of the agreement set forth in said policies, although the time specified in said policies in which to make proper proof of loss and compliance with the terms therein has long since lapsed. Wherefore defendant prays to be dismissed herein, with its costs wrongfully sustained.

'Second. For second plea, defendant says that plaintiff did not comply with the terms of his policies sued upon herein, in that he carried and sold wines, whiskies, and other spirituous liquors in said place of business described in his declaration, and thereby made the risk more hazardous that it otherwise would have been, and that said wines, whiskies, and spirituous liquors were sold without license, and as that is commonly known as a 'Blind Tiger,' and that the same was done without the knowledge or consent of this defendant, and that he thereby increased the hazard or risk above what defendant assumed in issuing said policies, and he thereby violated and breached the terms of his said agreement as set forth in said policies. Wherefore defendant says that plaintiff should not maintain his aforesaid action, and prays to be dismissed, with its reasonable costs in this behalf wrongfully sustained.'

'Now comes the defendant in the above-entitled cause, by Frazier & Mabry, its attorneys, and for pleas to the first and second and third counts in the declaration filed in the above cause says:

'(1) That it is not true, as alleged, that plaintiff kept and performed all things in the policy contained, on his part to be kept and performed; on the contrary, plaintiff did not keep and perform the certain covenant and warranty in said policy, styled the 'Iron Safe Clause,' in the particulars, to wit, that plaintiff did not make a complete itemized inventory of the stock on hand at least once in each calendar year, and, such inventory not having been taken within twelve calendar months prior to the date of the said policy, did not take one in detail within thirty days after the issuance of the said policy, as in said provisions set forth.

'(2) It is not true, as alleged, that plaintiff kept and performed all things in the said policies contained on his part to be kept and performed; on the contrary, plaintiff did not keep and perform the certain covenant and warranty in said policy contained, styled the 'Iron Safe Clause,' in the particulars, to wit, that plaintiff did not keep a set of books which clearly and plainly presented a complete record of the business transacted, including all purchases, sales, and shipments, both for cash and credit, from the date of the inventory as provided for in said clause, and during the continuance of the said policy.

'(3) It is not true, as alleged, that the plaintiff kept and performed all things in the policy contained on his part to be kept and performed; on the contrary, plainiff did not keep and perform the certain covenant and warranty in said policy contained, styled the 'Iron Safe Clause,' in the particulars, to wit, that the plaintiff did not keep such books and inventory as were provided for in said clause and also the last preceding inventory, if such had been taken, securely locked in a fireproof safe at night, and at all times when the building mentioned in said policy was not actually opened for business, or failing in this, the plaintiff did not keep such books and inventory in some place not exposed to a fire which would destroy the aforesaid building.

'(4) It is not true, as alleged, that plaintiff kept and performed all things in the said policy contained on his part to be kept and performed; on the contrary, plaintiff did not keep and perform the certain covenant and warranty in said policy, styled the 'Iron Safe Clause,' in the particulars, to wit, that plaintiff did not produce such set of books and inventory as are provided for in said clause for the inspection of the said company, but failed to produce such set of books and inventory for the inspection of this defendant, notwithstanding this defendant requested of the plaintiff an opportunity to inspect them straightway upon being notified, as alleged, of the said fire.

'(5) It is not true, as alleged, that plaintiff kept and performed all things in the said policy contained on his part to be kept and performed; on the contrary, the plaintiff did not keep and perform that certain agreement and condition in said policy, and included within lines sixty-seven (67) and eighty (80), inclusive, in said original policy, as follows, to wit 'If fire occur, the insurance shall give immediate notice of any loss thereby, in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon, and within sixty (60) days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by the said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of the loss thereon, all incumbrances, all other insurance, whether valid or not, covering any of the said property, and a copy of all the descriptions and schedules in all policies, and changes in the title, use, occupation, location, possession, or exposures of the said property since the issuance of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire, and shall furnish, if required, verified plans and specifications of any buildings, fixtures, or machinery destroyed or damaged, and shall also, if required, furnish a certificate of magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that said magistrate of notary public shall certify'--in this, to wit, that plaintiff did not file immediate notice in writing to said defendant of the said loss, and did not make a complete inventory of the said property, and did not, within sixty days after the fire, render a statement to this company, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the time and origin of the said fire, the interest of the insured and all others in the property, the cash value of each item thereof and the amount of loss thereon, and all incumbrances, and all other insurance, whether valid or not, covering any of the said property, and did not furnish a copy of all descriptions and schedules of all policies, and giving any change in the title, use, occupation, location, possession, or exposure of...