L'engle v. Scottish Union & Nat. Fire Ins. Co.

• Decision Date: 19 July 1904
• Citation: 48 Fla. 82,37 So. 462
• Court: Florida Supreme Court
• Parties: L'ENGLE v. SCOTTISH UNION & NATIONAL FIRE INS. CO. [*]

37 So. 462

48 Fla. 82

L'ENGLE v. SCOTTISH UNION & NATIONAL FIRE INS. CO. ^[*]

Florida Supreme Court, Division B.

July 19, 1904

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

Action by John C. L'Engle against the Scottish Union & National Fire Insurance Company. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Chapter 4173, p. 101, act approved June 2, 1893, providing for the recovery of attorney's fees in certain actions against fire and life insurance companies, was not repealed by chapter 4677, p. 33, act approved May 31, 1899, nor is it repugnant to any provision of the Constitution of Florida or the Constitution of the United States.

2. A policy of insurance for $2,500 on two buildings contained a clause providing that 'this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy.' Attached to the policy were three indorsement slips, all same date as the policy, one fixing the insurable value of the property at $2,500, in compliance with the requirements of chapter 4677, p. 33, act approved May 31, 1899, another being the standard mortgage clause with full contribution, and the third containing a description of the property insured, with the amount of insurance written thereon, and a clause as follows: '2,500 total concurrent insurance permitted.' Held, that the clause last quoted construed in connection with the language of the entire policy, permitted other concurrent insurance not to exceed $2,500. Hocker, J., and Taylor, C.J., dissenting.

3. In construing the different provisions of a contract of insurance, all must be so construed, if it can reasonably be done, as to give effect to each. Where two interpretations equally fair may be given, that which gives the greater indemnity will prevail. If one interpretation, looking to the other provisions of the contract and to its general object and scope, would lead to an absurd conclusion, such interpretation must be abandoned, and that adopted which will be more consistent with reason and probability. In all cases the policy must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to the indemnity which, in making the insurance, it was his object to secure. When the words are, without violence susceptible of two interpretations, that which will sustain the claim of the insured and cover his loss must, in preference, be adopted.

4. If a written contract is ambiguous or obscure in its terms, so that the contractual intention of the parties cannot be understood from a mere inspection of the instrument extrinsic evidence of the subject-matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract, may be received to enable the court to make a proper interpretation of the instrument.

COUNSEL

E. P. Axtell and E. J. L'Engle, for plaintiff in error.

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

On July 25, 1901, plaintiff in error began an action against the defendant in error in the circuit court of Duval county to recover upon a fire insurance policy. There was a verdict and judgment for defendant, from which this writ of error was taken by the plaintiff.

The original declaration contains three counts. The first is substantially in the form prescribed by chapter 4935, p. 67 act approved May 31, 1901. It makes no reference to other insurance upon the property. It claims attorney's fees under chapter 4173, p. 101, act approved June 2, 1893.

The court sustained a demurrer to the second count, and, in view of the conclusions reached on other assignments of error, it is not deemed necessary to state the substance of that court, or to consider the assignment of error based upon that ruling.

The third count was for attorney's fees under chapter 4173, supra. Upon motion the court struck out so much of the first count as claimed attorney's fees, and sustained a demurrer to the third count.

After the ruling upon the demurrers the plaintiff amended his declaration by adding two new counts, numbered, respectively, second and third. The second count of the amended declaration alleges: That on or about January 10, 1901, plaintiff, being the owner of the property insured, applied to defendant to issue a policy of insurance for $2,500 thereon against loss or damage by fire, and directed the defendant to provide in said policy for $2,500 additional insurance upon said property. That thereafter, in compliance with such request and direction, the defendant issued and delivered to plaintiff, in consideration of $56.25 to it then paid by plaintiff, its policy of insurance, which said policy permitted $2,500 other and additional insurance, and thereby promised to insure plaintiff against loss or damage by fire to the amount of $2,500, and to make good unto plaintiff the loss or damage that might happen to an amount not exceeding $2,500 for one year from the 10th day of January, 1901, to the 10th day of January, 1902, on the two-story frame shingle-roof buildings and additions situate 231-233 West Beaver street, Jacksonville, Fla., being $1,250 specifically on each building, the loss to be paid 60 days after due notice and proofs made by the plaintiff and received by the defendant; and in said policy sundry provisions, conditions, prohibitions, and stipulations were and are contained and thereto annexed, as by a copy of said policy filed therewith and made a part of the declaration more fully appears. That at the time said policy was issued and delivered there was other and additional insurance upon the property to the amount of $1,500, of which defendant had notice at and before the time it issued and delivered its policy to the plaintiff, and said other and additional insurance to the amount of $1,500 was in force and effect at the time the property was destroyed by fire. That afterwards, on May 3, 1901, the property was totally burned and destroyed by fire, and damage and loss was thereby occasioned to plaintiff to the amount of $2,500, being $1,250 upon each of said buildings, in such manner and under such circumstances as to come within the promise and undertaking of the policy, and to render liable and oblige the defendant to pay plaintiff said sum of $2,500 on account of its policy, of which loss defendant had due notice, to wit, on or about May 10, 1901, whereupon defendant then and there denied that it was liable under and by virtue of the policy, and denied that there was anything due plaintiff on account of the policy, and refused to pay said loss, or any part thereof, for the reason that at the time said property was destroyed by fire there was other and additional insurance upon the property to the amount of $1,500. That, although all conditions had been performed and fulfilled, and all events and things existed and happened, and all periods of time had elapsed to entitle plaintiff to a performance of the contract and to the sum of $2,500, and nothing had occurred to prevent plaintiff from maintaining the action, yet the defendant had not paid or made good to the plaintiff the amount of loss and damage, or any part thereof; wherefore plaintiff claims $4,000 damages.

The third count of the amended declaration is substantially the same as the second, except in two particulars, as follows: (1) It alleges that the policy permitted '$2,500 total concurrent insurance,' while the second count alleges that the policy permitted '$2,500 other and additional insurance.'

Second. It alleges that long prior to the loss under the policy the plaintiff paid the defendant the premium demanded by it for the issuance of the policy, and defendant received and accepted the same, and that after such payment and receipt of the premium the defendant knew of the existence of the other and additional insurance on the property, and with such knowledge kept and retained the premium so paid, and never at any time paid or returned the same, or any part thereof, to plaintiff, or tendered or offered so to do, but still retains and keeps same; while the second count omits such allegations. Each count contains other allegations not necessary to be mentioned.

The policy was attached to and made a part of the declaration. Three riders, or indorsement slips, each signed by the agent, and purporting to be attached to the policy, appear as parts of the policy. The first indorsement slip contains the following among other provisions: '$2,500.00 on the two-story frame shingle-roof buildings and additions, including foundations, plumbing, steam, gas and water pipes and connections, and all permanent fixtures for heating and lighting, occupied as dwellings and situate 231-233 West Beaver street, Jacksonville, Fla., being $1,250 specifically on each building,' '$2,500 total concurrent insurance permitted.' The second indorsement slip is a standard mortgage clause with full contribution. The third indorsement slip is as follows: 'Florida indorsement slip. For policy covering two or more buildings. The insurable values of the buildings herein described are fixed at the following amounts:

Value of buildings:

Building No. 1 1250 Building No. 3.

Building No. 2 1250 Building No. 4.

'Attached to policy No. 263958, Scottish Union & National Insurance Company, 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 body of the policy contains a stipulation as follows: 'This entire...