Kight v. American Eagle Fire Ins. Co. of New York

• Decision Date: 07 July 1936
• Citation: 170 So. 664,125 Fla. 608
• Parties: KIGHT v. AMERICAN EAGLE FIRE INS. CO. OF NEW YORK.
• Court: Florida Supreme Court

170 So. 664

125 Fla. 608

KIGHT v. AMERICAN EAGLE FIRE INS. CO. OF NEW YORK.

Florida Supreme Court, Division A.

July 7, 1936

On Rehearing November 9, 1936.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by A. M. Kight against the American Eagle Fire Insurance Company of New York. Judgment for defendant, and plaintiff brings error.

Reversed.

On Rehearing.

COUNSEL

Edwin R. Dickenson and J. E. Williams, both of Tampa, for plaintiff in error.

Sutton Tillman & Reeves, of Tampa, for defendant in error.

OPINION

PER CURIAM.

An action was brought by the alleged mortgagee of the property insured, on a fire insurance policy covering a building for the period from July 1, 1933, to July 1, 1934. The fire occurred July 18, 1933. The declaration in effect alleges that the property was owned by Augusta L. Gillean, and that at the time of the fire loss and at the present time, the owner of the property was indebted to the mortgagee plaintiff herein in the principal sum of $4,500 with interest thereon. Defendant's pleas in substance (1) deny that the owner of the property was indebted to the plaintiff as alleged in the declaration; (2) deny that any indebtedness of the mortgagor to the plaintiff is just and unpaid; (3) deny that plaintiff had a valid and existing mortgage lien against the real estate or against the proceeds of the insurance; (4) aver that the true and equitable ownership of the property insured at the time of the fire was vested in John C. Sumner and aver facts in support thereof; (5) that the note and mortgage were executed as a part of a conspiracy between the plaintiff, A M. Kight, and her father, John C. Sumner, to defraud the defendant insurer, that after the placing of the note and mortgage in the name of the plaintiff, John C. Sumner did cause the property to be burned for the purpose of collecting the insurance, all with the knowledge and consent of the plaintiff, A. M. Kight; (6) that the true ownership of the note and mortgage is in John C. Sumner; (7) that at the time of the execution of said policy and at the time of said fire the said Augusta L. Gillean was not the sole and unconditional owner of the said property, but that she held the same merely as naked trustee, for one, John C Sumner; that plaintiff, A. M. Kight, had full knowledge of the said facts and consented to the same, but that the said plaintiff did not notify this defendant of the said facts; (8) that the valued policy law is not applicable in this case, for the reason that a short time preceding the fire there was removed from said building all plumbing fixtures, thereby greatly depreciating the value of the property, and 'that at the time of the said fire, the value of the said property did not exceed the sum of one thousand dollars ($1,000.00), and that if it is liable at all, it is only liable for the actual loss and damage caused by fire.'

The plaintiff was a married woman, but having been divorced, her husband was stricken as a plaintiff in the cause.

When the case was called for trial, counsel for the defendant announced:

'That there are two cases set for trial today, the same plaintiff in each case, but two separate defendants and we represent both defendants. Both suits involve one fire occurring to one building in two different sections, or probably two buildings joined. The defenses are the same. The testimony will be the same and we request te court to try these cases together. * * * The plaintiff is represented by the same counsel also.'

Counsel for the plaintiff objected:

'1. Because the buildings were not joined together, but are separate buildings on separate parcels of land.

'2. Because the parties are not the same.

'3. Because the facts in the two cases are not such facts as justify a consolidation under the statutes of this state in Law cases.

'4. Because these two cases are not two suits of the same obligation or contract as provided for in section 4224 of the Compiled General Laws of Florida.

'By the Court:

'The Court will grant the motion to try the cases together.

'To which ruling the plaintiff then and there excepted.

'By Mr. Reeves:

'The way I understand, your Honor did not consolidate but will try them together.

'By the Court:

'Correct.'

It thus appears that the two cases were not consolidated, but the court granted 'the motion to try the cases together.'

'A consolidation of actions is to be distinguished from the trial of several actions together, for an actual consolidation involves the union of several actions into one which is tried as such, while where several actions are tried together, although there is but one trial, the identity of the actions is preserved and separate verdicts and judgments rendered.' 1 C.J. 1121. See Lumiansky v. Tessier, 213 Mass. 182, 99 N.E. 1051, Ann.Cas.1913E, 1049; Keep v. Indianapolis & St. Louis R. Co. (C.C.) 10 F. 454, 456; Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706; 1 R.C.L. 361.

'A court may order several causes pending before it to be tried together where they are of the same nature, arise from the same act, event, or transaction, involve the same or like issues and depend largely or substantially on the same evidence and a joint trial will not give one party an undue advantage or prejudice the substantial rights of any party. This is true not only where the parties in the several actions are the same, but also, where some of the parties are different, as where the actions were brought by the same plaintiff or plaintiffs against different defendants or by different plaintiffs against the same defendant or defendants.' 64 C.J. 35. See Yardley v. Rutland R. Co., 103 Vt. 182, 153 A. 195, 196; Sun Insurance Office v. Scott, 284 U.S. 177, 52 S.Ct. 72, 76 L.Ed. 229; Home Ins. Co. of New York v. Scott (C.C.A.) 46 F. (2d) 10.

'The only effect of an order providing that several actions shall be tried together is to consolidate the cases for the purpose of trial; it does not merge the several actions into one; each case retains its distinctive characteristics and remains separate in respect of docket entries, depositions previously taken in one cause, verdicts, findings, judgments, proceedings to obtain an appellate review, and all other matters except the one of joint trial; and if there is error in one case only, it is fatal to the judgment in that case only. Likewise, the trial of two or more cases together by consent of all the parties does not merge the cases into one.' 64 C.J. 37.

Though the two cases were tried together, the pleadings, issues, evidence, verdicts, judgments, and records in the two cases are similar but distinct and several; separate writs of error and separate records are taken to this court in the two cases. There is nothing to indicate that any of the parties were prejudiced or injured by the trial of the two cases together; and no error appears in the order requiring the two cases to be tried together notwithstanding the objections of the counsel who represented the plaintiff in each case.

It is contended in the second question that under a plea of conspiracy between plaintiff and a third person, not a party to the suit, the introduction in evidence of statements made by such third person, not in the presence of the plaintiff, without first proving the existence of the conspiracy, would be unauthorized and hence erroneous.

The fifth plea set up as a defense that plaintiff is not the owner of the note and mortgage; that there was no consideration for issuance of the same; but that said note and mortgage were issued as part of a joint conspiracy between plaintiff and her father, John C. Sumner, to defraud defendant; that after placing the note and mortgage in plaintiff's name, John C. Sumner caused the property to be burned so as to collect the insurance, all with plaintiff's knowledge and consent.

The first assignment of error argued under this question is the ruling of the court on the following question asked James Campbell, a negro:

'Q. Did Mr. Sumner tell you whether or not he owned that property?

'A. Yes sir, he said that he owned it.

'By Mr. Dickenson:

'We object to that question because it is hearsay. Mr. Sumner is not a party to this suit, and he has not been a witness in this case, and it is not proper for this witness to testify what a third party told him as against the plaintiff in this case.

'By the Court:

'I overrule the objection.'

Silas Kight was asked the following question which was objected to by counsel:

'Q. Did Mr. Sumner ever make any statement to you about whether or not he carried the title to his property in his own name or in other people's names?

'A. Yes sir.

'Q. Approximately when was that conversation?

'By Mr. Williams:

'We object to that because Mr. Sumner is not a party to this suit, and the testimony called for is hearsay, and is immaterial and irrelevant in this case.

'By the Court:

'Objection overruled.'

The record shows that at the time objection had been made to these questions, they had already been answered by the respective witnesses. The questions were objected to on the ground that the evidence sought to be elicited thereby was incompetent. The court overruled the objections, without stating the grounds for its decision. If the court overruled the objections on the ground of competency and not on the ground of delay, the question is preserved for review. Lucas v. United States, 163 U.S. 612, 16 S.Ct. 1168, 41 L.Ed. 282. But the ground upon which the objections were overruled was not stated; and as the objections were made after the questions had been answered, they came too late, and the questions cannot be considered here. 26 R.C.L. 1046, § 55.

Objection was made to a...