National Union Fire Ins. Co. of Pittsburg, Pa., v. Cone

• Decision Date: 12 July 1920
• Citation: 85 So. 913,80 Fla. 265
• Parties: NATIONAL UNION FIRE INS. CO. OF PITTSBURG, PA. v. CONE.
• Court: Florida Supreme Court

85 So. 913

80 Fla. 265

NATIONAL UNION FIRE INS. CO. OF PITTSBURG, PA. v. CONE.

Florida Supreme Court

July 12, 1920

Error to Circuit Court, Alachua County; James T. Wills, Judge.

Action by T. J. Cone against the National Union Fire Insurance Company of Pittsburg, Pa. Judgment for plaintiff, and defendant brings error. Affirmed upon remittitur.

Syllabus by the Court

SYLLABUS

The provisions in a standard fire insurance policy requiring the insured to notify the company in writing of the loss and to furnish proof of such loss are conditions precedent to the right to sue, but the failure to comply with said provisions promptly does not invalidate the policy or work a forfeiture of the rights of the insured, in the absence of a stipulation to that effect.

An objection to the introduction in evidence of the original fire insurance policy sued on, because of variance between the names of the persons signing as president and secretary as shown by said original policy and the copy attached to the declaration, was properly overruled when the court was unable to distinguish from the signatures whether they were the same or not, and when the company's agent who issued the policy, and whose name was properly given in the copy identified the policy as the one signed by him and delivered to the plaintiff covering the property in question.

A motion to strike testimony must not be too broad. If it includes any proper testimony it should be denied.

Where a question propounded to a witness is not shown by the record to have been answered, an assignment of error based on an objection thereto must fail.

A question of fact upon which the evidence conflicts is peculiarly within the province of the jury to decide.

Where a fire insurance policy provides that loss shall not be payable until 60 days after the proof of loss has been furnished interest on the amount due does not run prior to said time.

Where a motion for a new trial is sufficient to direct the attention of the trial court to harmful error in the general charge given, such error should be corrected.

The courts should exercise care and caution in decreeing attorney's fees, to the end that only reasonable fees for services rendered be allowed, but where a cause is brought to an appellate court, not to have the amount allowed for attorney's fees alone reviewed, but other questions as well, the allowance for attorney's fees will not be disturbed when it appears not to be excessive, in view of services rendered in both the trial and appellate courts.

Trial courts should not fix the amount of attorney's fees in anticipation of a possible or probable appeal or writ of error.

COUNSEL E. G. Baxter, of Gainesville, and F. Y. Smith, of Alachua, for plaintiff in error.

W. S. Broome and Thos. W. Fielding, both of Gainesville, for defendant in error.

OPINION

REAVES, Circuit Judge.

T. J Cone, whom we shall call the plaintiff, sued the National Union Fire Insurance Company of Pittsburg, which we shall call the defendant, in the circuit court of Alachua county, to recover for damage done by fire to a building owned by the plaintiff and insured by the defendant. The property was insured for $700. The fire occurred December 1, 1916. The company was notified in writing and proper proof of the damage furnished as required by the contract on August 4, 1918. The verdict and judgment gave the plaintiff $225 damages, with interest at 8 per cent. from the day of the fire, amounting to $45, and attorney's fees $150.

The first assignment of error complains of the order of the court in sustaining a demurrer to the defendant's first and second amended pleas. By the first of these pleas it is alleged that the plaintiff ought not to have or maintain his action, for the reason that the policy provides that 'if fire occur the insured shall give immediate notice of the loss in writing to this company,' and that such notice was not immediately given, but was delayed, as hereinbefore stated; and the second plea is similar, except that it alleges delay in furnishing the proof of loss required by the policy. That these provisions in a standard fire insurance policy are conditions precedent to the right to sue and the failure to comply with them promptly does not invalidate the policy or work a forfeiture of the rights of the insured, in the absence of a stipulation to that effect, is settled by the decision of this court in Hartford Fire Ins. Co. v. Redding, 47 Fla. 228, 37 So. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118.

It is next assigned that the court erred in overruling defendant's objection to the introduction of the policy in evidence. The defendant, by proper plea, had denied the making of the policy sued on, and the objection to the introduction of the policy offered is based on a supposed variance between the names of the persons signing as president and secretary and the corresponding officers as named on a copy of the policy attached to the declaration. The court, in overruling this objection, said he was unable to distinguish from the signatures whether they are the same or not. It is therefore manifest that we cannot hold the trial court in error, inasmuch as the original policy is not before this court for examination. Moreover, the company's agent who issued the policy, and whose name is properly given in the copy attached to the declaration, identified the policy offered in evidence as the one signed by him and delivered to the plaintiff covering the property in question. It is therefore manifest that the defendant was not misled, even if it be true that the copyist failed to correctly decipher and reproduce the names.

The third assignment is that the court erred in refusing to grant the motion of the defendant to strike all the testimony of the witness P. H. Perry. The ground of the motion is that Perry, in his estimate of the cost of replacing the building has based the estimate on the cost of new material instead of material of the character in the building at the time of the fire. This motion...