Leavine v. Belt Auto. Indemn. Ass'n

• Decision Date: 05 January 1925
• Citation: 88 Fla. 553,102 So. 768
• Court: Florida Supreme Court
• Parties: LEAVINE v. BELT AUTOMOBILE INDEMNITY ASS'N.

102 So. 768

88 Fla. 553

LEAVINE v. BELT AUTOMOBILE INDEMNITY ASS'N.

Florida Supreme Court, Division B.

January 5, 1925

Suit by W. W. Leavine against the Belt Automobile Indemnity Association. From an order sustaining a general demurrer to the bill, complainant appeals.

Reversed.

Syllabus by the Court

SYLLABUS

Sustaining general demurrer to bill in equity is error, if, under allegations thereof, equity for substantial relief can be shown. Where under the allegations of a bill of complainant an equity for substantial relief may be shown by appropriate and sufficient evidence, it is error to sustain a general demurrer to the bill. Wells v. Williams, 80 Fla 498, 86 So. 336. Appeal from Circuit Court, Hillsborough County F. M. Robles, Judge.

COUNSEL

R. E L. Chancey and John Bell, both of Tampa, for appellant.

Shackleford & Shackleford, of Tampa, for appellee.

OPINION

WEST J.

This suit is to reform and enforce a policy of insurance issued by the defendant insurance company to indemnify complainant against loss or damage by theft, robbery, or pilferage of an antomobile. The bill alleges, that, because of inadvertence and mistake, which were mutual and common to both parties to the contract, there was a misdescription of the automobile in the application for and policy of insurance; that the automobile owned by complainant and intended to be insured was afterwards stolen, and complainant, as a result, sustained a loss against which he is indemnified by the contract. There was a general demurrer to the bill, which was sustained, and this appeal is from that order.

It is conceded that mutual mistakes in a written policy of insurance may be corrected and the policy made to conform to the contract actually made, and such reformed contract may be enforced in equity. This doctrine has been frequently reiterated by this court. Hanover Fire Ins. Co. v. Hiers, 79 Fla. 408, 84 So. 605; Rosenthal v. First Nat. Fire Ins. Co., 74 Fla. 371, 77 So. 92; Southern States Fire Ins. Co. v. Vann, 69 Fla. 544, 68 So. 645; Fidelity Phenix Fire Ins. Co. v. Hilliard, 65 Fla. 443, 62 So. 585; Phenix Ins. Co. v. Hilliard, 59 Fla. 590, 52 So. 799, 138 Am. St. Rep. 171.

It is not considered necessary to set out at length the allegations of the bill. The rule is that, if there is any ground for equitable relief stated in the bill, a general demurrer to the bill will be overruled. Weathers v. Tyler, 86 Fla. 181, 97 So. 311; Wells v. Williams, 80 Fla. 498, 86 So. 336; Shone v. Bellmore, 75 Fla. 515, 78 So. 605; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 So. 603; Mitchell v. Mason, 65 Fla. 208, 61 So 579.

The bill in this case is not so lacking in equity as to be amenable to general demurrer. The order sustaining the demurrer is erroneous.

Reversed.

WHITFIELD, P.J.,...