Hartford Fire Ins. Co. v. Hollis

• Decision Date: 21 December 1909
• Citation: 58 Fla. 268,50 So. 985
• Parties: HARTFORD FIRE INS. CO. v. HOLLIS.
• Court: Florida Supreme Court

50 So. 985

58 Fla. 268

HARTFORD FIRE INS. CO. v. HOLLIS.

Florida Supreme Court, Division A.

December 21, 1909

Error to Circuit Court, Jackson County; J. E. Wolfe, Judge.

Action by J. M. Hollis against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

In passing upon an assignment based upon a ruling sustaining a demurrer to a plea, an appellate court will restrict its investigation to the grounds stated in the demurrer, unless the plea is so faulty as to constitute no defense to the action.

It is the declared policy of this court to confine the parties litigant to the points raised and determined in the court below, and not to permit the presentation of points, grounds or objections for the first time in this court, when the same might have been cured or obviated by amendment, if attention had been called to them in the trial court.

A ground of demurrer interposed to several pleas 'that each and all of said pleas are vague, indefinite, and uncertain and set forth no defense as against the plaintiff's cause of action,' is not a sufficient compliance with the statutory requirements, and presents nothing for consideration, unless, upon a bare inspection of the pleas they should be found so faulty and defective as to constitute no defense to the action.

If the plaintiff conceives pleas are 'so framed as to prejudice or embarrass or delay the fair trial of the action,' he should move the court for a compulsory amendment thereof in accordance with the provisions of section 1433, Gen. St 1906.

A clause in a fire insurance policy, providing that 'this entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed,' is a wise and proper safe guard to the insurer against the greatly increased risk consequent upon the circumstances provided against therein. This is likewise true of the customary clause in insurance policies, 'or if the hazard be increased by any means within the control or knowledge of the insured.' In an action upon such policy the insurer is entitled to base its defense upon a failure to comply with such provisions.

In an action upon a fire insurance policy containing the customary provisions in such policies as to the institution of foreclosure proceedings and increased hazard, when such policy, which is attached to the declaration and made a part thereof, shows that it is a combination policy issued for a single stated consideration, whereby the defendant company agreed and undertook to insure the plaintiff against loss or damage by fire to the amount of $1,250, of which $1,000 was placed upon the stock of merchandise 'while contained' in the described building, and the other $250 was placed upon such building 'while occupied as a general merchandise store,' it is error to sustain a demurrer to pleas which aver the institution and pendency of foreclosure proceedings upon such building with the knowledge of the insured, and the failure of the plaintiff to comply with the provisions of the policy relating thereto, especially when the grounds of the demurrer fail to specifically point out wherein such pleas are defective in substance.

What is commonly known as the 'iron-safe clause' usually found in fire insurance policies has been held by this court to be a valid provision, and the defendant company, in an action brought against it upon such policy, is entitled to base its defense thereto upon the failure of the plaintiff to comply with such provision.

In reviewing a ruling sustaining a demurrer prior to Laws 1909, p. 56, c. 5912, requiring the trial judge to specify the particular grounds of a demurrer upon which his ruling is founded, if the demurrer should have been sustained on any ground, it is immaterial that it was sustained upon a wrong ground, since it is with the ruling itself, and not with the reasons therefor, that the appellate court deals.

Where a demurrer was interposed to a plea when a motion to strike out would have been the proper practice, but such plea was so faulty that the court would have been justified in striking it out of its own motion, the sustaining of the demurrer thereto would be harmless error.

Rules of pleading are for the attainment of substantial justice, and are to be construed so as to harmonize with it if possible.

Under the express provisions of Gen. St. 1906, s 1694, it is not necessary to take an exception to a judgment upon demurrer.

COUNSEL Cockrell & Cockrell, for plaintiff in error.

Price & Watson, for defendant in error.

OPINION

SHACKLEFORD J.

A judgment is brought here for review which the defendant in error as plaintiff in the court below recovered against the plaintiff in error as defendant upon a fire insurance policy. The declaration substantially follows the statutory form in such actions, and a copy of the policy is attached thereto. Six pleas were filed as follows:

'(1) The building described in said declaration was located on and was a part of certain real estate which was granted to the plaintiff by one John W. Sketo under whom plaintiff claimed title, and, while so owned by said Sketo, said Sketo gave a mortgage thereon, to wit, two mortgages to Covington & Co. and one mortgage to F. M. Hawkins, upon which foreclosure proceedings were commenced and duly prosecuted to a judicial sale of said property on the 6th day of January, A. D. 1908, the day following the night when said building was destroyed by fire. Said foreclosure proceedings were so commenced and prosecuted in the said circuit court on the chancery side, with the knowledge of the plaintiff, and notice was given of the sale of said land including said building by virtue of said mortgage, to wit, each and every the three mortgages aforementioned, and in pursuance of the final decree of said court ascertaining due by said mortgagor to said mortgagees a large sum in the aggregate, to wit, $2,400, and directing the said sale by a master appointed for the purpose, and said notice of sale was to given by said master for the usual period, to wit, 30 days, as directed in said decree, and for such period said notice was published in a newspaper published in said county, and said notice contained a description of said land whereof said building was a part and gave the title of the case and the day of sale as aforesaid, and the place of sale therein given was at the county site of said county, to wit, at the courthouse door, and during said period long prior to said sale the plaintiff saw said notice, and knew that said property was to be sold on the first Monday in January, A. D. 1908, and said real estate was so sold on said day by said master, but the night before, as aforesaid, said building was destroyed by fire. There was no agreement indorsed on or added to said policy with reference to said foreclosure or to said notice of sale.

'(2) And for a second plea the defendant says that notice of sale was given of property covered by the said policy, to wit, said building, by virtue of a mortgage thereon, that said notice was by publication in a newspaper published in said county and pending the same and long before the sale day was known to the plaintiff, and said fire occurred the night before the day for sale fixed in said notice, and that there was no agreement indorsed on or added to said policy with reference to said foreclosure or to said notice of sale.

'(3) And for a third plea the defendant says that the alleged contract declared on called a policy contains the provision, 'This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the hazard be increased by any means within the knowledge or control of the insured;' that after the issuance of the policy declared on, and prior to the alleged fire, Covington & Co. and F. M. Hawkins procured a decree in a foreclosure suit against one John W. Sketo, which decree ascertained a large sum, to wit, $2,400, due said mortgagees, and said decree directed the sale of said land by a master appointed for the purpose, and said notice of sale was given by said master for the usual period, to wit, 30 days, as directed in said decree, and for such period such notice was published in a newspaper published in said county, and said notice contained a description of said land whereof said building was a part, and gave the title of the case and the day of the sale as aforesaid, and the place of sale therein given was at the county site of said county, to wit, at the courthouse door, and during said period long prior to said sale the plaintiff saw said notice and knew that said property was to be sold on the first Monday of January, A. D. 1908, and said real estate was so sold on said day by said master, but the night before, as aforesaid, said building was destroyed by fire. The procurement of this decree and the advertisement of the sale of property covered by the policy sued on increased the hazard, and there was no agreement indorsed on or added to said policy otherwise providing with reference to increasing the hazard.

'(4) And for a fourth plea the defendant says that it is not true, as alleged, that all conditions have been performed and all things and events existed and happened to entitled the plaintiff to the sum sued for or any sum in the premises, in this; that there was a part of said policy generally styled 'iron-safe clause,' made a part of said declaration, and that said plaintiff did not comply therewith, in this: that he did not keep a set of books,

...