Hartford Fire Ins. Co. v. Redding

• Decision Date: 04 June 1904
• Citation: 37 So. 62,47 Fla. 228
• Parties: HARTFORD FIRE INS. CO. v. REDDING et al. [*]
• Court: Florida Supreme Court

37 So. 62

47 Fla. 228

HARTFORD FIRE INS. CO. v. REDDING et al. ^[*]

Florida Supreme Court, Division B.

June 4, 1904

Error to Circuit Court, Jefferson County; John W. Malone, Judge.

Action by Ida H. Redding and another against the Hartford Fire Insurance Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Chapter 4173, p. 101, act approved June 3, 1893, which authorizes the recovery of attorney's fees in certain cases against insurance companies, is constitutional.

2. The attorney's fees provided for by chapter 4173, p. 101, act approved June 3, 1893, may, under the second section of that act, be recovered in the same suit and included in the same judgment as the amount due upon the policy of insurance.

3. Chapter 4173, p. 101, act approved June 2, 1893, which authorizes the recovery of attorney's fees in certain cases against insurance companies, was not repealed by chapter 4677, p. 33, act approved May 31, 1899.

4. Chapter 4677, p. 33, act approved May 31, 1899, does not deprive the insurer of the right to plead that the fire was caused by the criminal conduct of the insured, or that the insurable value thereby required to be fixed and written in the policy was procured to be so fixed by fraud on the part of the assured.

5. Chapter 4677, p. 33, act approved May 31, 1899, is not repugnant to the Constitution of this state, nor to that of the United States.

6. Leave to amend a pleading may be granted during a term of court without notice to the opposite party of the application therefor, even though the cause has been submitted upon demurrer by brief at such term.

7. Where an amendment of the declaration is permitted pending the hearing of a demurrer thereto the court should permit the defendant to plead or demur to the amended declaration, and it will be error for the court to apply the demurrer on file to the amended declaration without defendant's consent.

8. Errors without injury are not ground for reversal.

9. The requirements in the standard insurance policy that the insured shall give notice of loss and make proofs of loss are conditions precedent to the right to sue, but a failure to give the notice or to make the proofs within the time stipulated will not invalidate the policy, or work a forfeiture of the rights of the insured, in the absence of a stipulation to that effect, but will merely postpone the day of payment, where such notice is given and proofs of loss made within such time as will enable the insured to bring his suit within the time limited by the policy.

10. Where proofs of loss required to be made and served upon the company by the policy are sufficiently full to give the company notice of the loss required by another provision in the policy, the same document will be sufficient as a notice of the loss, as well as proofs of loss.

11. Proofs of loss served upon an insurance company, signed and sworn to by the insured, stating that the fire occurred at a stated hour on a day named; that it originated in the roof or attic of the building, but how it originated, or the cause thereof, was to the insured entirely unknown; that the fire did not originate by any act, design, or procurement on the part of the insured, or in consequence of any fraud or evil practice done or suffered by the insured; and that any other information required by the company would be furnished on request--substantially comply with a provision in the policy requiring the proofs of loss to state the knowledge and belief of the insured as to the time and origin of the fire particularly as the company requested no further information from the insured.

12. Trial courts have power to permit parties to withdraw from written stipulations waiving a jury and submitting the cause upon an agreed statement of facts to the court. The exercise of such power rests in discretion, and it is properly exercised where the application is made before the court has decided the cause under the written submission, and the party applying has discovered other pertinent facts since the submission was entered into, which the other party declines to embrace in the agreed statement. The fact that, by the exercise of due diligence, the omitted facts might have been discovered before the submission was entered into, does not deprive the court of the power to grant the application to withdraw.

13. Under section 1059, Rev. St. 1892, a plaintiff may file more than one replication or subsequent pleading to any pleading of the defendant, if he so desires.

14. Where, at the time a policy of insurance is written, other insurance exists upon the same property, and the fact is known to the agent, who communicates it to the company, and the company accepts the premium, and does not deny the validity of its policy on account of such other insurance until after a loss occurs, the company is liable, though its consent for such other insurance was not indorsed upon the policy as required by its terms. Such conduct on its part amounts to a waiver of the provision requiring written consent for other insurance, and the waiver will apply not only to the other insurance as it existed when its policy was written, but to any policy subsequently issued in lieu or renewal of such other insurance.

COUNSEL

A. W. Cockrell & Son, for plaintiff in error.

T. L Clarke, for defendants in error.

OPINION

CARTER P.J.

This writ of error is taken from a judgment in favor of defendants in error rendered by the circuit court of Jefferson county in an action against plaintiff in error upon a fire insurance policy. The policy, in form, is substantially the same as that set forth in the statement of facts in the case of Indian River State Bank v. Hartford Fire Insurance Company (Fla.) 35 So. 228, except as hereinafter stated. It is dated October 14, 1899, and purports to insure Ida H Redding, for the term of one year from October 15, 1899, 'against all direct loss or damage by fire except as hereinafter provided to an amount not exceeding fifteen hundred dollars,' to the building therein specifically described. It contains an indorsement, 'The insurable value of the building herein described is fixed at $3,000,' purporting to have been made 'to comply with the act of the Legislature of the state of Florida regulating the issue of policies by fire insurance companies approved May 31, 1899.'

The declaration, as originally drawn, alleges the making of the policy, the payment of the premium, and the ownership of the property by Ida H. Redding at the time the policy was issued and at the time of the fire. It alleges that by the policy the defendant 'did insure the plaintiff Ida H. Redding for the term of one year from the said 15th day of October, A. D. 1899, at noon, to the 15th day of October, A. D. 1900, at noon, against all loss or damage by fire, except as therein provided, to an amount not exceeding the sum of fifteen hundred dollars,' on a certain building (describing it); that 'in and by its said policy the said defendant, the Hartford Fire Insurance Company, did promise and agree to pay to the plaintiff Ida H. Redding all such loss or damage as might occur to said building by fire during the period of such insurance aforesaid, not exceeding the said sum of fifteen hundred dollars, sixty days after notice and proof of such loss or damage furnished to the said defendant company'; that 'on the 21st day of August, A. D. 1900, and while the said policy of insurance was in full force and effect, the aforesaid building was totally and entirely lost and destroyed by fire, of which loss and destruction the said defendant had due notice'; and that 'the plaintiff Ida H. Redding has rendered to the said defendant company a particular account and proof of said loss more than sixty days prior to the commencement of this action, and has otherwise fully complied on her part with all the conditions of said contract of insurance.' It further alleges that the cash value of the building was $4,000 at the time of the loss; that Ida H. Redding actually sustained loss to said amount; that the total insurance on the building was $3,000, consisting of the policy in suit, 'and a like policy of insurance for the sum of fifteen hundred dollars issued to the plaintiff Ida H. Redding on the said building by the Home Insurance Company of New York City, at its Monticello, Florida, agency, numbered 328, dated April 18, 1900, and expiring April 18, A. D. 1901, of all which the defendant had due notice and proof.'

There are other allegations in the declaration, which need not be noticed, further than to say that attorney's fees were claimed under the statute hereafter referred to. The policy was attached to, and made a part of, the declaration.

The defendant filed its motion to strike those allegations of the declaration claiming attorney's fees upon the grounds: (1) There is no law authorizing such recovery.

(2) There is no law which required defendant to pay attorney's fees before suit brought and prosecuted.

(3) There is no law authorizing plaintiff to demand such fees before suit brought and prosecuted. Consequently there can be no failure to pay, on which to predicate a demand and refusal. This motion was overruled, and the ruling is assigned as error.

The court at the trial instructed the jury to find for the plaintiff an additional sum as attorney's fees, to be fixed at such reasonable amount as was shown by the evidence. This instruction was excepted to, and is also assigned as error.

The recovery of attorney's fees in cases of this character is authorized by chapter 4173, p. 101, act approved June 2 1893. It is contended that the statute is unconstitutional, but this court held otherwise in Tillis v. Liverpool & London & Globe...