Palatine Ins. Co. v. Whitfield

• Decision Date: 24 March 1917
• Citation: Palatine Ins. Co. v. Whitfield, 73 Fla. 716, 74 So. 869 (Fla. 1917)
• Parties: PALATINE INS. CO. v. WHITFIELD.
• Court: Florida Supreme Court

74 So. 869

73 Fla. 716

PALATINE INS. CO. v. WHITFIELD.

Florida Supreme Court

March 24, 1917

Error to Circuit Court, Jackson County; Cephas L. Wilson, Judge.

Action by J. M. Whitfield against the Palatine Insurance Company. Verdict and judgement for plaintiff, motion for new trial denied, and defendant brings error. Affirmed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Where the record shows that at the time of filing the bill of exceptions the plaintiff in error filed his complete assignment of errors, and both appear in the transcript of the record, it must be assumed, in the absence of an affirmative showing to the contrary, that an assignment of errors was presented to the judge with the bill of exceptions.

As the court should refuse to settle a bill of exceptions when no assignment of errors is presented therewith, it must be assumed, in the absence of an affirmative showing to the contrary, that an assignment of errors was presented to the judge with the bill of exceptions.

The mere fact that the bill of exceptions, duly authenticated contains no assignment of errors, is not conclusive that the same was not presented to the judge, even though special rule No. 1 of this court (37 South. x) directs that the assignment of errors presented with the bill of exceptions shall be made a part thereof.

It is not a violation of the iron safe clause of a fire insurance policy for the insured not to keep his books and last inventory in a fireproof safe, if he can produce them when demanded.

The provision in a fire insurance policy requiring the insured to 'keep a complete set of books, which shall clearly and plainly present a complete record of business transacted including all purchases, sales, and shipments, both for cash and credit,' is satisfied, if the insured can produce them when demanded.

Where an insurance company intends to insist on a forfeiture clause of its policy, it should so inform the insured as soon as practicable after it ascertains the facts upon which it bases its claim for forfeiture.

The declaration in an insurance policy that a violation of its provisions will cause it to become null and void does not make it so, but the policy is voidable only.

A forfeiture clause in an insurance policy may be waived by the insurance company, and such waiver may be established by the acts and statements of its representatives.

The provisions of an insurance policy limiting or avoiding liability are construed strictly against the insurer, and liberally in favor of the insured.

COUNSEL Paul Carter, of Marianna, for plaintiff in error.

John H Carter, of Marianna, for defendant in error. On May 17, 1915, defendant in error brought suit in the circuit court of Jackson county against the Palatine Insurance Company.

The declaration is in the statutory form on a fire insurance policy.

The defendant filed eight pleas.

The first plea charges a breach of what is known as the 'iron safe clause,' in that plaintiff did not take inventories as provided for in the policy.

The second plea charges violation of 'iron safe clause,' in that plaintiff did not keep books, and did not produce the books for inspection of defendant, as required by the policy.

The third plea charges that plaintiff took out additional insurance without securing the agreement of the defendant and having same indorsed on the policy.

The fourth plea charges that plaintiff used gasoline on the premises where the property was insured, and no agreement of the defendant for him to do so was indorsed on the policy.

The fifth plea is to the same effect, except that it charges that plaintiff generated illuminating gas or vapor adjacent to the building described in the policy, and no agreement of the defendant for him to do so was indorsed in the policy.

The seventh plea charges that plaintiff did not give notice and furnish proofs of his loss within 60 days from the date of the fire.

The eighth plea is a traverse of the damages alleged.

The plaintiff filed replications to all but the eighth plea.

The replication to the first and second pleas in substance sets up that the defendant sent an adjuster to Malone to investigate the origin and extent of the fire, to whom plaintiff produced evidentiary data, invoices, and books of account that were kept by the plaintiff in the usual course of business, which were accepted and used by the company's adjuster without objection, and thereafter before the institution of this suit offered plaintiff $488 for his loss on merchandise, and $312 for loss on furniture and fixtures, and did not deny the company's liability, nor object that the provisions of the policy had not been complied with, and thereby waived the defense sought to be made by these pleas.

The replication to the third plea in substance sets up that the same agent who issued and delivered the policy sued on procured the additional insurance mentioned in this plea with knowledge at the time that the policy sued on was then in force, and delivered to him the policy for such additional insurance, and consented to same and waived endorsement of same on the policy; that after the fire the company sent an adjuster to Malone to investigate the origin of the fire, the nature and extent of plaintiff's loss, and the defendant company's liability therefor, and thereafter offered to pay plaintiff $488 in settlement of plaintiff's loss on his stock of merchandise, and did not deny its liability under the policy, and that the defense sought to be set up by this plea was thereby waived.

The replication to the fourth, fifth, and sixth pleas in substance sets up that the property insured was situated in the plaintiff's drug store and was lighted by artificial gas generated in a tank outside the building, that the lighting apparatus was standard in design and installation, of a type approved by the National Board of Fire Underwriters, and permitted without extra charge by all fire companies writing business in the town of Malone, Fla., including the defendant, and that its use was known, or should have been known, by the defendant at the time of delivering the policy and accepting the premium therefor; that no gasoline was used, allowed, or generated in the store in which the insured articles were kept, or adjacent thereto, except the gasoline so used and allowed.

The replication to the seventh plea sets up that within 60 days after the fire the insurance company's adjuster came to Malone, and after investigation, and with full knowledge of the facts alleged in this plea, offered to pay the plaintiff $800 in settlement of the liability, and did not then or at any time prior to the institution of the suit make any objection to paying the loss on the grounds set forth in this plea.

The defendant filed rejoinder to plaintiff's replication to the defendant's first, second, third, and seventh pleas, and also filed demurrer thereto, upon the grounds that they are vague, indefinite, uncertain, and insufficient; that the facts set up in the replication to the first and second pleas are insufficient to constitute a waiver; that an offer of compromise is insufficient as a waiver of the iron safe clause; that the facts set up in replication to third plea are not sufficient to constitute a waiver; that the replication fails to allege that the agent received knowledge of the additional insurance while acting as agent of defendant, or within the scope of his authority as such agent; and that the replication sets up two distinct matters by way of reply. The demurrer to the replication was overruled. The defendant for rejoinder sets up that, before the insurance company's adjuster made any investigation of the loss, the plaintiff entered into an agreement in writing with the insurance company that any action or investigation on the part of the adjuster relating to the claim of plaintiff for loss or damage should not be a waiver of any of the conditions or requirements of the insurance policy.

To this rejoinder the plaintiff demurred, on the grounds, that it is vague, indefinite, uncertain, and insufficient; that it is not alleged that there was any consideration for the nonwaiver agreement; that it is not alleged that the nonwaiver agreement was entered into without notice on the part of defendant of the existence of the facts constituting a forfeiture of the policy; that the nonwaiver agreement is simply declaratory of the nonwaiver stipulation contained in the policy, and does not constitute a bar to the waiver created by defendant's adjuster proceeding to investigate the loss, and requiring plaintiff to submit proofs as to plaintiff's loss, and defendant's liability. The demurrer to the rejoinder being sustained, and the defendant having joined issue on the plaintiff's replication to the defendant's pleas, the case proceeded to trial, and resulted in a verdict and judgment for the plaintiff for $2,000, with interest, and $25 and 10 per cent. for attorney's fees. A motion for a new trial having been denied by the trial judge, writ of error was sued out to this court.

There are nine assignments of error, as follows:

'(1) The court erred in overruling defendant's demurrer to plaintiff's replication.

'(2) The court erred in sustaining plaintiff's demurrer to defendant's rejoinder.

'(3) The court erred in admitting in evidence the two pages of the inventory, amounting to $78.92 and $98.25, being various articles of jewelry.

'(4) The court erred in overruling defendant's motion to strike out the item of microscope, $100, from plaintiff's inventory in evidence.

'(5) The court erred in admitting in evidence the letter dated April 10, 1915, signed by J. T. Dargan, Jr., addressed to Whitfield & Thomas, and in...