Indian River State Bank v. Hartford Fire Ins. Co.

• Decision Date: 14 July 1903
• Citation: 46 Fla. 283,35 So. 228
• Parties: INDIAN RIVER STATE BANK v. HARTFORD FIRE INS. CO.
• Court: Florida Supreme Court

35 So. 228

46 Fla. 283

INDIAN RIVER STATE BANK v. HARTFORD FIRE INS. CO.

Florida Supreme Court, Division A.

July 14, 1903

Error to Circuit Court, Brevard County; Rhydon M. Call, Judge.

Action by the Indian River State Bank against the Hartford Fire Insurance Company. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A suit on a policy of fire insurance, originally instituted by H. and B. as joint plaintiffs, may, under the Florida statute of amendments, be properly amended so that H. shall be the sole nominal plaintiff suing for the use of B.; and such suit may further be properly amended so as to drop H. as a plaintiff therein altogether, the usee, B., being substituted as the real and only plaintiff; and such suit, in so far as B.'s rights are affected by a clause in the policy sued on limiting the time within which suit thereon may be instituted, will be deemed and held to have been instituted on the date when it was first brought by H. and B. as joint plaintiffs.

2. Where H., to whom a policy of fire insurance is issued, after a loss thereon, assigns and delivers it to B. to secure an indebtedness due from him to B., and for collection as his agent, with authority to B. to collect the same, and to deduct from the proceeds the amount of H.'s indebtedness up to the time of such collection, and to account to H. for any overplus above such indebtedness, under these circumstances, held, that B., under the provisions of section 981, Rev. St. 1892, permitting any civil action at law to be maintained in the name of the real party in interest, can, in his own name alone, maintain an action at law for the collection of such policy as the real party in interest. Held, further, that in such a case, in the event of B.'s recovery in his own name on such policy, the only claim that H. would have would be against B. for any balance remaining after the payment in full out of the proceeds of H.'s debt to B. In such case H. would have no claim against the insurance company.

3. If the provisions of a policy of fire insurance render it void in the event the insured did not own the land in fee upon which the insured premises stood, or in the event the personalty insured was incumbered with a chattel mortgage these avoiding facts, if existent, are proper matters of defense to a suit on such policy for the defendant to urge by plea, and it is not necessary to the maintenance of the plaintiff's suit on such policy that he should negative such facts in his declaration.

4. An agent may be authorized to deny on behalf of a fire insurance company liability on a policy issued by such company, when he is not authorized by such company to adjust the loss, or to accept for it proofs of loss.

5. If an agent of a fire insurance company has authority for it to deny liability on one of its policies, and does so deny such liability, then it makes no difference whether such company has knowledge of such denial of liability or not; it is bound by the authorized acts of its agent whether it has knowledge of such acts or not.

6. In a suit on a policy of fire insurance, where the declaration alleges that there was a denial of liability on the policy by the defendant company, it is not necessary for such declaration to allege that the plaintiff was misled by such denial of liability. The simple allegation that the defendant company denied all liability on the policy is sufficient to give to the plaintiff any advantage to be derived from a waiver of proofs of loss that follows, as a legal consequence, upon such denial of liability. The question in such a case is one purely of fact. Did the defendant company absolutely repudiate or deny all liability upon the policy sued on? If it did, then it follows, as a legal consequence that it has waived the making of proofs of loss provided for in the policy.

7. Where a local agent of an insurance company has authority to represent the company in making contracts of insurance, in collecting premiums, and in signing policies, he also has authority to waive proofs of loss, either in writing or by parol, or by matters in pais which amount to an estoppel. 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.

8. 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.

9. The following stipulation in a policy of insurance: 'No officer, agent or other representative of this company shall have power to waive any condition or provision of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have power or be deemed or held to have waived such conditions or provisions unless such waiver, if any, shall be written upon or attached hereto,' refers to the conditions which go to the making of the contract of insurance, and not to provisions relating to the proof of loss which are to be performed in the event of a loss, and consequently this stipulation does not operate to prevent the company from making waiver of proof of loss by conduct, or otherwise than by an express agreement.

10. The legal effect of the provision in the policy of insurance sued on in this case that requires the assured to make proofs of loss within 60 days after the fire is not to make such policy void, forfeited, or annulled upon a failure to furnish such proofs of loss within the prescribed time, but its only effect, in connection with another provision in such policy stipulating that the amount due upon the policy shall be payable 60 days after satisfactory proofs of loss have been received by the company, is that it postpones the date when the amount of the loss becomes due and payable, and consequently, in cases where the furnishing of such proofs of loss have not been excused or waived, postpones the time within which suit may be brought thereon.

11. In an action on a policy of fire insurance the plaintiff may, in different counts of his decfaration, aver both a waiver by the company of the proofs of loss and a compliance with the provisions of the policy as to such proofs on his part, and may rely upon that one of the counts that the evidence establishes. The plaintiff may also insist that proofs of loss have been waived, notwithstanding the fact that he later furnishes such proof from abundance of caution.

12. A special count in a declaration for interest upon the amount claimed as principal, while not perhaps necessary for the recovery of interest, is not an improper pleading, and is not subject to demurrer.

COUNSEL

Geo. M. Robbins and Geo. P. Raney, for plaintiff in error.

A. W Cockrell & Son, for defendant in error. On the 10th day of December, 1896, the plaintiff in error, jointly with one Simon Hamburg, instituted suit against the defendant in error in the circuit court of Brevard county upon a policy of fire insurance issued by the defendant in error to said Simon Hamburg upon a building and stock of goods therein; the declaration alleging, in substance, the destruction by fire on December 12, 1895, of said building and contents, during the life of said policy, and that on the 13th day of December, 1895, after the said loss the said Simon Hamburg, for value received, by a written assignment indorsed upon said policy, pledged the same to the plaintiff, the Indian River State Bank, and deposited the same with said bank as security for certain debts and engagements of the said Simon Hamburg to the said bank, and that said policy has never been redelivered to the said Hamburg, but is in the custody and possession of said bank, as pledgee thereof, to secure the payment of said debts and the performance of said engagements, etc.; a copy of the policy sued upon being attached to said declaration.

To this declaration the defendant insurance company interposed a demurrer upon the grounds, among others: '(1) The action is brought by the Indian River State Bank, a corporation, and Simon Hamburg, as coplaintiffs herein, on the alleged insurance policy therein set up, and yet there is no averment in said declaration upon which a joint recovery by said coplaintiffs may be predicated.

'(2) Said action so instituted and declared on, if conducted to a final judgment for this defendant, could not be pleaded in bar of a subsequent action instituted by either of the several plaintiffs on said alleged policy against this defendant.'

This demurrer was sustained specifically upon the first ground thereof above quoted, and the plaintiffs allowed to amend as they may be advised.

The declaration was then amended by making Simon Hamburg the nominal plaintiff, suing for the use of the Indian River State Bank, and reiterating the averments as to the assignment and pledging of the policy sued upon to said bank as security for debts due to it by Hamburg, etc. The defendant insurance company then moved for judgment final upon its demurrer to the former declaration upon the grounds that 'the plaintiffs have not amended the declaration herein so as to take said declaration out of the condemnation of the ground of demurrer sustained by the court. The plaintiffs have not filed any amended declaration, or any amendment to the declaration herein.'

This motion was denied by the court, and the defendant allowed time within which to plead. To the...