Queen Ins. Co. v. Patterson Drug Co.

• Decision Date: 20 March 1917
• Citation: 73 Fla. 665,74 So. 807
• Parties: QUEEN INS. CO. v. PATTERSON DRUG CO.
• Court: Florida Supreme Court

74 So. 807

73 Fla. 665

QUEEN INS. CO. v. PATTERSON DRUG CO.

Florida Supreme Court

March 20, 1917

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

Suit by the Patterson Drug Company against the Queen Insurance Company. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A nonwaiver agreement may itself be waived by the same acts and doings of an insurance company's adjuster or representative, or by such transactions with the insured as would amount to a waiver of a forfeiture clause of the policy.

Where an insurance company, with full knowledge of the facts out of which a forfeiture arose, by its acts recognized the policy as a valid and subsisting contract, and induced the insured to act in that belief and incur trouble or expense, such action will be a waiver of the condition under which the forfeiture arose.

Where a duly authorized agent of an insurance company places insurance with the assistance of another whom he employs to solicit the insurance, and who delivers the policy, collects the premium, and does all the things which the agent himself might do, and to whom he gives the power and authority of a subagent with whom the insured deals in all matters connected with the application for the policy and its receipt, and to whom he pays the premium, the insurance company cannot escape responsibility for his acts, even if he is not designated or regularly appointed by the agent of the company, as an agent.

It is the duty of the insured to use all reasonable means to save and preserve insured property from impending loss or damage from fire, and if while moving it from threatened destruction or damage, or after it is removed, and before he has had time to put it in a place of safety, any of the goods are stolen the theft is a consequence flowing from the peril insured against and incident thereto, and the insured may recover for the loss of goods by theft.

The restriction in an insurance policy against loss of goods by theft is incompatible with the requisite that the insured shall use all reasonable means to save them from impending destruction or damage from fire.

Where there are conflicting clauses in an insurance policy, the one which affords the most protection to the insured will control.

Where an insurance policy under penalty of nonrecovery, requires the insured to do something which will almost inevitably result in a loss, the company cannot escape liability by a restriction in the policy that it will not be liable for a loss occurring as a result of the insured performing the required act.

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

Smith &amp Davis, of Marianna, for defendant in error.

OPINION

BROWNE C.J.

The defendant in error, the plaintiff below, brought suit against the Queen Insurance Company of America in the circuit court of Jackson county upon a fire insurance policy. A trial was had on the issues, which resulted in a verdict and judgment for plaintiff, and defendant sued out writ of error. The declaration is substantially in statutory form, and a copy of the insurance policy sued on is attached thereto and made a part of the declaration.

Five pleas were filed by the defendant, which are in substance as follows: The first plea denies that plaintiff was damaged as alleged; the second plea avers that plaintiff did not within 60 days render such a statement of the loss and circumstances surrounding same as required by the policy; the third plea avers that plaintiff 'allowed' gasoline on the premises without an agreement permitting it being indorsed on the policy; the fourth plea is to the same effect, except that it charges that gasoline was 'used' on the premises without indorsement of the agreement permitting it the fifth plea avers that plaintiff did not protect the property and did not separate the damaged and undamaged property, but negligently permitted it to remain unprotected and unseparated and in bad order.

The plaintiff filed eight replications, joining issue on the first and fifth pleas, and defending as to the others. A demurrer was interposed to the second, third, fourth, fifth, sixth, and seventh replications, which was sustained as to the fourth replication, and overruled as to all the others.

The first error assigned is based on the court's overruling this demurrer. The plaintiff in error abandons any claim of error in this ruling as to all but the sixth and seventh replications.

The sixth replication in substance admits that the store in which the insured articles were kept was lighted by artificial gas or vapor generated from gasoline kept in a tank outside the building, and more than three feet from any opening in the building, and was conducted into the store through pipes connected with a gas machine outside the building, and alleges 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 insurance companies writing business in the town of Malone, Fla., including the defendant; that the gasoline kept for sale was outside the building in street near premises; that the system of lighting had been in use and operated in the building, and gasoline so kept for sale for a period of three years or more before the policy was issued and was apparent to any one, including defendant's agent and subagent inspecting the building, all of which was known and should have been known to defendant at the time of delivering the policy and accepting the premium for same; that the policy was issued upon the verbal application of plaintiff, and no question was asked nor representations made as to the existence or nonexistence of the lighting system, or keeping gasoline, and no notice was given the plaintiff that the continued use of said lighting system or keeping of gasoline would render the policy void; that the gasoline used and allowed on the premises was gasoline allowed and permitted by the fire insurance companies, including the defendant, without extra charge; that the adjuster sent by defendant to Malone to investigate the origin and extent of the fire and all matters alleged in the pleas, with full knowledge of matters and things set forth in the pleas, never riased any question as to any of the matters set forth in either of said pleas as being prohibited, nor has defendant, with full knowledge of the alleged use of gasoline, ever in any manner protested against such use, or as being prohibited by the terms of the policy before the suit was brought. The plea concludes with the allegation that the matters set up in the third and fourth pleas, if they ever existed, were before this suit waived by the defendant.

The waiver contended for by this replication is based upon two sets of acts, the one, those of the agent who procured the policy and who had knowledge of the use of gasoline before and at the time he procured and delivered the policy, and the other the nonaction or passiveness of the adjuster who went to Malone after the fire. The plaintiff in error attacks the ruling of the court for overruling his demurrer to this replication because mere passiveness on the part of the insurance company or its adjuster is not enough. It is true that this court quoted from Titus v. Glens Falls Ins. Co., 81 N.Y. 410, to the effect that 'a waiver cannot be inferred from its mere silence,' but mere passiveness may be sufficient under certain circumstances, to amount to a waiver.

It is not necessary, however, to determine whether or not the passiveness of the adjuster in this case amounted to a waiver, because the other averments in the replication show acts of the agent of the insurance company which clearly do so. Further, the plaintiff in error admits that, 'if the agent of the defendant saw the gas machine before the policy was written, such fact would tend strongly to support the claim of waiver.' The knowledge of the agent of the facts set forth in this replication was the knowledge of the insurance company, and when it delivered the policy to the insured with full knowledge of these conditions, it consented to the continued use of gasoline outside the building for generating an illuminating gas or vapor for use in the building, and also for the continued sale by the insured of gasoline which was kept in a tank outside the building and more than three feet away from it. The demurrer to this replication was properly overruled.

It is contended that the demurrer to the seventh replication should have been sustained because it is a mere affirmation that the plaintiff did the things which defendant says in his fifth plea he did not do. Whether this is so or not, no harm was done the defendant by the court refusing to sustain the demurrer to the replication upon that ground alone. It may have been bad pleading, but we are not prepared to say that bad pleading which works no harm is reversible error. Further than this, the plaintiff joined issue on the third plea. The demurrer to this replication was properly overruled.

The defendant filed a rejoinder to the plaintiff's second third, fourth, fifth, sixth, and seventh replications, in which he avers substantially that before defendant made any investigation of the loss, and took any documents or data or other matter set up in the fourth replication, the plaintiff and defendant entered into an agreement and stipulated in writing in substance and to the effect that any action taken by defendant, or request made, or information received in and while investigating and ascertaining the cause of the fire, the amount of the loss, or damage or other matter relative to plaintiff's claim, should not change, waive, validate, or...