Eagle Fire Co. v. Lewallen

• Citation: 56 Fla. 246,47 So. 947
• Parties: EAGLE FIRE CO. v. LEWALLEN et al.
• Decision Date: 11 November 1908
• Court: United States State Supreme Court of Florida

47 So. 947

56 Fla. 246

EAGLE FIRE CO. v. LEWALLEN et al.

Florida Supreme Court, Division B.

November 11, 1908

Headnotes Filed Jan. 20, 1909.

Error to Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Action by George Lewallen and another, copartners, against the Eagle Fire Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A provision in a fire insurance policy that the policy, unless otherwise provided by agreement indorsed thereon, shall be void if the insured shall procure other contracts of insurance on the same property, is inserted for the benefit of the insurer, and may be waived by him.

Forfeitures are not favored in the law, and, notwithstanding the strong language used in an insurance policy in declaring the forfeiture, the policy is not void, but voidable, and the party who has the right to declare the forfeiture may thereafter treat the policy as valid, and it will be so.

Notice of additional insurance to a local fire insurance agent who has authority to represent the company in making contracts of insurance, to collect premiums, to countersign and deliver policies, to grant removal permits and to make indorsements therefor on the policy, to consent to additional insurance and to indorse the company's consent thereto on the policy is notice to the company.

The acts of an agent performed within the scope of his real or apparent authority are binding upon his principal. The public have a right to rely upon an agent's apparent authority and are not bound to inquire as to his special powers, unless the circumstances are such as to put them upon inquiry.

The clause in the fire insurance policy placing a limitation upon the power of any officer, agent, or other representative of the company in the waiver of any provision or condition in the policy does not supersede the law making the principal liable for the negligent, wrongful, or fraudulent act of its agent, or the law of equitable estoppel, and this clause of limitation may itself be waived by the company through its agent acting within the apparent scope of his authority.

In a case where, after the issuance of the policy of fire insurance sued upon and before the loss, other insurance was taken out upon the same property, and the local agent of the company who issued the policy and had authority to grant permits affecting the policy was informed of the additional insurance at the time an additional premium for a removal permit was paid to the insurance agent, who did not inform the company of the existence of the additional insurance, but the agent promised and agreed to indorse the consent of the company thereto in writing upon the policy, the company will be held liable on the policy, although its consent for such other insurance was not indorsed upon the policy as required by its terms; such conduct on the part of its agent acting within his apparent authority amounting to a waiver of the provisions requiring written consent for other insurance.

A departure in a pleading is a desertion of the ground which the pleader occupied in his last antecedent pleading and a resort to another ground. If the reply asserts some right not counted upon in the declaration, it is a departure.

In a suit upon a fire insurance policy, the stipulation against additional insurance being a condition subsequent and set up as a matter of defense by plea, a replication alleging a waiver was not inconsistent with nor a departure from the allegations of the declaration.

COUNSEL Axtell & Rinehart, for plaintiff in error.

P. O. Knight and C. C. Whitaker, for defendants in error.

OPINION

PARKHILL J.

The defendants in error, hereinafter to be called the plaintiffs sued the plaintiff in error, hereinafter to be called the defendant, in the circuit court for Hillsborough county to enforce the payment of an insurance policy issued by the defendant. The declaration was in the statutory form, with the policy attached and made a part thereof.

Briefly stated, the pleas set up that prior to the fire, and subsequent to the date of the policy sued upon, the plaintiffs procured other insurance upon the same property to the amount of $8,000, without having an agreement providing for said other insurance indorsed on or added to the policy.

For reply to the pleas, the plaintiff admits the facts pleaded, but avers in avoidance that at the time of the taking out of the other insurance, and before the loss, and at the time an additional premium for a removal permit was paid to the agent of the defendant, said agent was informed of the additional insurance, and he then and there promised and agreed to make the necessary indorsement therefor upon the policy.

The defendant demurred to the replications. The court overruled the demurrers, after which issue was joined upon the replications and a trial had, and judgment rendered against the defendant.

The action of the court in overruling the demurrers to the replications is assigned as error. The plaintiff in error says that but two questions are thus presented for the determination of this court:

(1) Is notice to the defendant's agent and the knowledge of such agent, given and acquired subsequent to the issuing of the policy, of additional insurance taken upon the property subsequent to the date of the policy sued upon, and an agreement by the agent to make an indorsement upon the policy, sufficient to constitute a waiver of the conditions of the policy as to other insurance?

(2) Do the facts set up in the plaintiffs' replications constitute a departure from the cause of action declared upon in the declaration?

We will follow the argument of counsel, and consider these questions in the order of their submission.

The policy sued upon contained the following conditions:

'(1) This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy.

'(2) This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.'

Provisions like the one set up here, that the policy, unless otherwise provided by agreement indorsed thereon, shall be void if the insured shall procure other contracts of insurance on the same property, are inserted for the benefit of the insurer, and may be waived by the insurer.

In Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla. 268, 35 So. 171, 110 Am. St. Rep. 89, we held that forfeitures are not favored in the law, and, notwithstanding the strong language used in declaring the forfeiture that the policy 'shall become null and void,' the policy is not void, but voidable, and the party who has the right to declare it void may thereafter treat it as valid and it will be so.

In a case where, at the time the policy of insurance sued upon was written, other insurance existed upon the same property, and that fact was known to the agent, who communicated it to the company, and the company accepted the premium, and did not deny the validity of its policy on account of such other insurance until after the loss occurred, this court held the company liable, though its consent for such other insurance was not indorsed upon the policy as required by its terms; such conduct on the part of the company amounting to a waiver of the provision requiring written consent for other insurance. Hartford Fire Ins. Co. v. Redding et al., 47 Fla. 228, 37 So. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118.

In the instant case, although the additional insurance did not exist at the time the policy sued upon was written and the agent did not communicate the fact of additional insurance to the company, we think there was a waiver by the defendant company of the provisions requiring written consent for the other or additional insurance.

Notice of the additional insurance to the agent who had authority to represent the company in making contracts of insurance to collect premiums, to countersign and deliver policies, to consent to additional insurance, and to indorse the company's consent thereto on the policy, and to grant removal permits and to make indorsements therefor on the policy, was notice to the company. An agent with these powers is the general agent of his company. He may be said to be a local general agent. Pechner v. Phoenix Insurance Company, 65 N.Y. 195, text 208; May on Insurance, § 129. In speaking of the power of such an agent this court has said: 'An insurance company cannot make its local agent the medium through which all the benefits of a policy flow from the insured to it, and then deny that he has authority to represent it when the benefits of the insured are involved.' Indian River State Bank v Hartford Fire Ins. Co., 46 Fla. 283, 35 So. 228. See, also, Nickell v. Phoenix Ins. Co., 144 Mo. 420, 46 S.W. 435. Knowledge of an agent of an insurance company as to matters within the general...