Durbin Paper Stock Co. v. Watson-David Ins. Co., WATSON-DAVID

• Decision Date: 07 July 1964
• Docket Number: 63-775-63-779,Nos. 63-746,WATSON-DAVID,s. 63-746
• Citation: 167 So.2d 34
• Parties: DURBIN PAPER STOCK CO., Inc., Gold Coast Paper Stock Company, Inc., Joseph J. Russo and Victoria Storelli, as Executrix of the Estate of Dominick Storelli, Deceased, Appellants, v.INSURANCE COMPANY, Inc., a Florida corporation, Appellee. EAGLE STAR INSURANCE CO., American Universal Insurance Co., Buffalo Insurance Co., the Camden Fire Insurance Association, the Manhattan Fire and Marine Insurance Co., Appellants, v. DURBIN PAPER STOCK CO., Inc., Appellee.
• Court: Florida District Court of Appeals

Page 34

167 So.2d 34

DURBIN PAPER STOCK CO., Inc., Gold Coast Paper Stock Company, Inc., Joseph J. Russo and Victoria Storelli, as Executrix of the Estate of Dominick Storelli, Deceased, Appellants, v. WATSON-DAVID INSURANCE COMPANY, Inc., a Florida corporation, Appellee.

EAGLE STAR INSURANCE CO., American Universal Insurance Co., Buffalo Insurance Co., the Camden Fire Insurance Association, the Manhattan Fire and Marine Insurance Co., Appellants, v. DURBIN PAPER STOCK CO., Inc., Appellee.

Nos. 63-746, 63-775-63-779.

District Court of Appeal of Florida, Third District.

July 7, 1964.

Rehearing Denied Sept. 21, 1964.

George J. Baya and Stewart D. Allen, Miami, for Eagle Star Ins. Co., American Universal Ins. Co., Buffalo Ins. Co., Camden Fire Ins. Ass'n, and Manhattan Fire & Marine Ins. Co.

Dean Adams & Fischer and Robert M. Sturrup, Miami, for Watson-David Ins. Co.

Before CARROLL, TILLMAN PEARSON and HENDRY, JJ.

HENDRY, Judge.

These are consolidated appeals from a final judgment entered by the trial judge pursuant to a directed verdict in favor of the plaintiffs against the defendants-insurance companies and a directed verdict in favor of the defendant-insurance agent.

The plaintiffs were the owners of a certain building and inventory. The defendant-insurance agent was a general lines agent pursuant to § 626.071, Fla.Stat., F.S.A. for the defendant insurance companies. The agent had also had previous dealings with the plaintiffs, and had placed insurance for them in regard to plaintiffs' business activities.

In June, 1959 one of the plaintiffs telephoned the defendant-agent, and advised the agent that the plaintiffs had just purchased the building adjacent to the building which the agent had already insured. At this time, plaintiff-Russo requested the agent to insure this new building for $18,000 and its contents for $7,000. The agent agreed to do this, and made a pencil notation as to the necessary information on a form known as a 'combination agency order'. The agent advised plaintiffs that the matter would be taken care of by his firm. No insurance polices were issued, and on August 3, 1960 the premises were destroyed by fire.

Thereafter, the agent advised the companies of his binder, and that insofar as he was concerned the policies were effective as of June 19, 1959. The pencilled 'combination agency order' had never been typed and forwarded to the companies, and for this reason policies had never been issued. The plaintiffs were never billed for premiums for these policies. The agent did not discover that these policies had not been issued until after the fire when he went to make the plaintiffs' claim for the loss. The companies refused to pay for the loss, and the instant litigation ensued. The plaintiffs sued the defendant-agent for negligence in failing to place the policies, and the insurance companies on the oral contract of insurance which the agent had effectuated.

At the end of all of the testimony, the trial court directed a verdict for the full amount of the policies in plaintiffs' favor against the defendant-companies, thereby making the determination that there was a contract of insurance between the parties. At the same time, the court directed a verdict in favor of the defendant-agent relieving the agent of any liability to the plaintiffs.

The insurance companies, by this appeal, assert error, in that; (1) there should not have been a directed verdict in favor of the agent; (2) there was no contract of insurance between them and the plaintiffs (3) the plaintiffs were estopped from relying on the oral order of June, 1959 to the agent; (4) the plaintiffs by suing the insurance agent for negligence in failing to obtain insurance, constituted an election of remedies on their part, and they may not thereafter sue the insurance company on the contracts of insurance.

Plaintiffs cross-appeal claiming error on the part of the trial court in directing a verdict in favor of the defendant-agent.

The companies' first contention that it was error to direct a verdict in favor of a co-defendant may not be raised by them. A co-defendant may not complain of a verdict rendered in favor of another co-defendant. ¹ The companies' attempt to distinguish the cases cited in support of the previous principle on the ground that these cases involved joint tortfeasors, is without merit. The principle may have been first recognized in regard to such situations, but it is clearly not limited thereto.

At this juncture, let us consider the plaintiffs' contention of error in regard to the directed verdict in favor of the insurance agent. Briefly the plaintiff asserts that the agent acted for the undisclosed principals, the insurance companies. Therefore, based upon the authority of Hohauser v. Schor, Fla.App.1958, 101 So.2d 169, plaintiff contends that the trial court should have permitted the question of agency to go to the jury and required the plaintiff to make an election after the verdict as to which of the parties, plaintiffs would take judgment against. The trial court, by directing its verdict did not permit this election.

Plaintiff correctly states the holding of this court in the Hohauser case, but that rule of law is inapplicable here. This is not a question of an undisclosed principal. Here the plaintiffs did not know the exact identity of the principal, but they knew that a principal existed, in that they did not intend for the agent to insure their building. They intended for the agent to act as an agent, not a principal, and obtain insurance for them from a third party (the insurance companies). The holding of the Hohauser case is that where both the agent and the undisclosed principal are sued for the same act, that is, in the same capacity, the plaintiff will not be required to make an election until after the verdict. Here the agent and the principal were sued in different capacities and on different...