Dowling v. Fidelity Mut. Life Ins. Co.
| Decision Date | 24 February 1921 |
| Citation | 81 Fla. 222,87 So. 749 |
| Parties | DOWLING et al. v. FIDELITY MUT. LIFE INS. CO. |
| Court | Florida Supreme Court |
Rehearing Denied April 1, 1921.
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by the Fidelity Mutual Life Insurance Company against W. H Dowling and another. Judgment for plaintiff on demurrer, and defendants bring error.
Reversed.
Syllabus by the Court
Where defense is provable under plea, demurrer overruled. Where a plea is so framed that a defense may be proven under it, a demurrer thereto should not be sustained.
J. T. G. Crawford and H. L. Anderson, both of Jacksonville, for plaintiffs in error.
W. H Baker and E. J. L'Engle, both of Jacksonville, for defendant in error.
In an action on a surety bond, given to an insurance company by its agent, having express reference to an employment contract pleas were filed under which a defense may be proven by appropriate evidence as to the course of dealing between the agent and the company in violation of the contract of employment, which may have operated to release the sureties, upon the general principles stated in Fidelity Mutual Life Association v. Dewey, 83 Minn. 389, 86 N.W. 423, 54 L. R. A. 945, and other like cases; and, as such pleas were not wholly bad for the purpose stated, it was error to sustain the demurrers thereto. Tedder v. Green, 79 Fla. 584, 84 So. 623. Writ of error was taken to a final judgment rendered for the plaintiff.
Reversed for appropriate proceedings.
On Petition for Rehearing.
The writ of error was taken by the two defendants, W. H. Dowling and N. G. Wade, and the only assignment of error is that----
'The court erred in sustaining the plaintiff's demurrer to the first, second, third and fifth amended pleas to the amended declaration.'
The pleas referred to are those of the defendant N. G. Wade. The record recites that----
'The defendants filed separate but identical pleas to said declaration, one set of said pleas being in the words and figures as follows,' setting out the pleas.
The record also recites that----
'The plaintiff filed separate, but identical demurrers to said amended pleas, one of said demurrers being in the words and figures as follows,' setting out the demurrer and the grounds thereof.
The order and judgment of the court are as follows:
'This cause came on to be heard this day on the demurrer of the plaintiff to the first, second, third, fourth and fifth, and motion to strike the first, second and fifth amended pleas of the defendant N. G. Wade filed herein on April 2, 1917, and upon the demurrer of the plaintiff to the first, second, third, fourth and fifth and motion to strike the first, second and fifth amended pleas of the defendant W. H. Dowling filed herein April 2, 1917, and said demurrers and motions having been argued by counsel, thereupon upon consideration thereof:
'It is considered by the court that the said demurrers, and each of them, be and they are hereby severally sustained as to the first, second, third, fourth and fifth amended pleas of the defendant N. G. Wade and as to the first, second, third, fourth and fifth amended pleas of the defendant W. H. Dowling.
'It is further considered by the court that the demurrers having been sustained the motions be not passed on.
'And it is further considered by the court that the defendants N. G. Wade and W. H. Dowling having severally refused to request leave to plead further, the plaintiff, the Fidelity Mutual Life Insurance Company, do have and recover of and from the defendants, N. G. Wade and W. H. Dowling, its damages in this cause wrongfully sustained and to be hereafter herein assessed.'
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