Glens Falls Ins. Co. v. Porter

• Decision Date: 18 November 1902
• Citation: 33 So. 473,44 Fla. 568
• Parties: GLENS RALLS INS. CO. v. PORTER.
• Court: Florida Supreme Court

33 So. 473

44 Fla. 568

GLENS RALLS INS. CO. v. PORTER.

Florida Supreme Court

November 18, 1902

Error to circuit court, Volusia county; John D. Broome, Judge.

Action by Sarah McF. Porter against the Glens Falls Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

Defendant in error instituted a suit at law against plaintiff in error and alleged in the declaration: That the defendant below, on the 27th day of May, 1895, at Titusville, in Brevard county Fla., made its policy of insurance, and delivered it to George B. Rumph, and thereby, in consideration of $22.50 premium to it paid by Rumph, insured the said George B. Rumph against loss or damage by fire to the amount of $500 on his two-story, metal-roof frame building, including awnings. While occupied by the assured as dry goods, clothing furniture, and millinery store, situate on the northwest corner of Main street and Washington avenue in Titusville Fla., and no dollars on his stock of merchandise, consisting chiefly of dry goods, clothing, furniture, etc., and such other merchandise kept for sale by the assured usual to his trade, while contained in said described building, and no dollars on store described building, and no dollars on store and office furniture and fixtures, including building; and by said policy permitted $2,000 other insurance to be concurrent therewith. That by said policy, for the consideration aforesaid, said defendant promised and agreed to make good and satisfy the said George B. Rumph all such direct loss or damage not exceeding the sum of $500 as should happen by fire to said property whereon said insurance was made from the 27th day of May, 1895, at noon, to the 27th day of May, 1896 at noon, such loss or damage to be estimated according to the actual cash value of said property at the time such loss or damage should happen; but said defendant not being liable for an amount greater than three-fourths of the actual cash value of each item of property insured (not exceeding the amount insured on each such item) at the time immediately preceding such loss or damage, and, in the event of additional insurance permitted by said policy, then its proportion only of the three-fourths of such cash value of each item insured at the time of the fire, not exceeding the amount insured on each item; and the amount thereof to be payable 60 days after notice; and proof of such loss or damage should be made by the insured in conformity to the conditions annexed to the said policy; and by its agreement filed with the treasurer of the state of Florida as a condition precedent to its doing business in said state, agreed that said loss should be payable and might be recovered by action in any county in which said defendant might have an agent doing its business of insurance. That the said conditions in the said policy mentioned are as follows: That the assured would take a complete itemized inventory of stock on hand at least once in each calendar year, and, in case such inventory had not been taken within 12 months before the date of the policy, that one should be taken in detail within 30 days thereafter; that the assured would keep a set of books, which should clearly and plainly present a complete record of business transacted, including all purchases, sales, and shipments, both of cash and credit, from date of inventory, as provided for in the foregoing conditions, during the continuance of this policy; that the assured would keep such books and inventory, 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 open for business, or, failing in this, that the assured would keep such books and inventory in some place not exposed to a fire which would destroy the aforesaid building; that the assured, if required, should produce such books and inventory for the inspection of the defendant; that the interest of the assured was and remained the unconditional and sole ownership of the property insured; that the ground on which the insured building stood was owned by the assured in fee simple; that the personal property was and should continue unincumbered by chattel mortgages; that the assured would refrain from increasing the hazard by any means within his knowledge or control; that he would refrain from keeping on said premises or using or allowing thereon benzine, benzole, dynamite, other fireworks, gasoline, Greek fire, gunpowder (except in twenty-five pounds in quantity), naphtha, nitroglycerline, or other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard; that the building should be occupied continuously, without vacancy as long as 10 days; that the assured would give immediate notice of any loss by fire to the defendant in writing, and protect the property from further damage in case of partial loss, and in such case separate and inventory the damaged and undamaged personal property, and in 60 days after such fire, unless the time was extended in writing by the defendant, should render a statement to defendant, signed and sworn to by the assured, stating his knowledge and belief 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 loss thereon, all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies, and changes in the title, use, occupation, location, or exposures of said property since the issuing of said policy, by whom and for what purpose any building therein described and the several parts thereof were occupied at the time of the fire, and that the assured would furnish, if required, a certificate of a 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 had examined the circumstances, and believed the insured had honestly sustained loss to the amount such magistrate or notary public should certify; that the insured, as often as required, should exhibit to any person designated by the defendant all that remained of any property in said policy described, and submit to examination under oath of any person named by the defendant, and subscribe the same, as often as requested produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof if originals were lost, at such reasonable place as might be designated by defendant or its representative, and permit extracts and copies thereof to be made; that, in the event of disagreement as to amount of loss, the same should be ascertained by appraisers, if required; that, if suit should be brought against defendant on said policy, it should be commenced within 12 months next after the fire; and that the word 'insured' used in said policy should be held to include the legal representative of the insured. That afterwards, on the 1st day of October, 1895, the interest of said George B. Rumph as owner of the property covered by said policy was for a valuable consideration assigned in writing indorsed on said policy to Simon Hamberg, subject to the consent of defendant, and that defendant on the 3d day of said month consented in writing indorsed on said policy that the interest of said Rumph as the owner of the property covered by the policy should be assigned to the said Hamberg, who from that date became the insured in said policy in place and stead of said Rumph, subject to perform all of the conditions and receive all of the benefits thereof. That in consideration of the premises, and that said Hamberg had accepted the assignment of said policy, and thereby had promised defendant to keep and perform all things in said policy contained on said Hamberg to keep and perform, the defendant promised said Hamberg that it would keep and perform all things in said policy mentioned on its part to be kept and performed, and defendant then and there became and was an insurer of the said Hamberg to the face value of said policy upon the said property. That from the time of making said policy and until the assignment thereof to the said Hamberg the said Rumph had an interest in said property more than one-third greater than the total amount of said sum so by the defendant insured thereon and the additional concurrent insurance underwritten thereon, and that his interest was the unconditional and sole ownership of the personal property and the fee-simple title and sole ownership of the land and building in said policy described, and that from the assignment of said policy to said Hamberg until the happening of the loss and damage hereinafter mentioned he had an interest in said property more than one-third greater than the total amount of the said sum so by defendant insured thereon and the additional concurrent insurance underwritten thereon, and that his interest was the unconditional and sole ownership of the land and building in the said policy described. That at the time of the writing and delivery of the said policy of insurance, on the 27th day of May, 1895, plaintiff was a mortgagee of the property so insured to the amount of $2,500, and no part of said mortgage debt has ever been paid. That as a part of said policy of insurance, and for the consideration hereinbefore mentioned, defendant agreed to pay the plaintiff the loss under said policy as her interest might appear, and further agreed, for the consideration aforesaid, that said insurance as to her interest should not be invalidated by any act or neglect of the mortgagor or owner of said property, nor...