Southern Home Ins. Co. v. Putnal

Citation57 Fla. 199,49 So. 922
Decision Date01 June 1909
CourtUnited States State Supreme Court of Florida

Error to Circuit Court, Taylor County; Bascom H. Palmer, Judge.

Action by J. A. Putnal against the Southern Home Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court


There is a clear distinction in the functions performed by a motion to strike out a pleading and a demurrer thereto, and this distinction should be observed. They cannot be used interchangeably and indiscriminately employed, as they are governed by essentially different rules of procedure.

A demurrer goes to the pleading as an entirety for insufficiency, while a motion to strike out is applicable where the pleading either as an entirety or in part is wholly irrelevant or for any reason improper.

A pleading may be stricken out if it is wholly irrelevant to the cause, or if it violates a rule or order of court, or if it be a palpable attempt to impose upon or trifle with the court, as by merely repeating or reiterating to no better effect the same matter which has already been presented and adjudged with no additions of new matter.

Striking out a pleading is a delicate matter and a severe remedy which should be resorted to only in cases clearly requiring it for the proper and orderly administration of justice.

A pleading in proper form, duly authenticated and filed, should not be stricken out for insufficiency. Its sufficiency as a pleading should be tested by demurrer or by a motion for the compulsory reformation thereof.

A plea that is only wanting in explicitness or fullness should not be stricken out on motion. In such a case the proper method of attack is by demurrer or a motion for compulsory reformation. When a good defense is defectively stated, it should not be stricken out on motion.

If a plea is so faulty and defective as to be wholly bad and to constitute practically no defense, or clearly tends to confuse the issue, as the case may be, so that the court would be warranted in striking out such plea of its own motion, no reversible error would be committed in sustaining a demurrer thereto, even though the proper method of attack would be by motion. It may constitute reversible error however, to strike out a plea which apparently contains a meritorious defense, even though the same be indefinitely pleaded and wanting in certainty.

Some pleadings may be infected with such vices as to be open to attack either by a motion to strike out or by demurrer.

There is a difference between a motion to strike out a pleading and a motion for the compulsory reformation thereof. However whether either of such motions is made under the statute, the court is expressly authorized to make a proper order respecting the pleadings, and this may be done even though the motion be not entirely appropriate in its terms.

If it is clearly and affirmatively made to appear that the party whose pleading has been improperly stricken out was not injured or harmed thereby in any way and was not prevented from submitting his case to the jury under such a state of pleadings as to give him all the benefit he would have had if such pleading had not been so stricken out, while such ruling would constitute technical error, it would not work a reversal of the judgment, but would be held to be harmless error. However, where no such showing is made to the appellate court, such ruling may constitute reversible error on the principle that, error having clearly been made to appear, injury must be presumed.

An appellate court will not reverse a judgment, however erroneously an isolated point may have been ruled by the court below, when it is clearly made to appear that the party complaining thereof was in no degree injured by such improper ruling.

Every presumption is in favor of the correctness of the ruling of the trial court, and an appellate court, in case of doubt, should resolve such doubt in favor of the trial court.

Where there is no bill of exceptions incorporated in the transcript of the record, and neither the evidence adduced or the charges and instructions given at the trial is brought before an appellate court, not having the entire record before it to resort to, such court is precluded from saying, when an erroneous ruling upon the pleadings is clearly made to appear, that from a consideration of the whole case such error is harmless.

The granting or denial of a motion for the compulsory amendment of a pleading, based on the statute, is a matter resting within the sound judicial discretion of the trial court, and the ruling thereon will not be disturbed by an appellate court, unless it is plainly made to appear that there has been an abuse of such discretion; but this principle is not applicable to the granting of a motion striking out a pleading.

In an action upon an insurance policy, which contains a provision that 'this entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject-matter thereof, whether before or after a loss,' it is error to strike out on motion a plea setting up as a defense to such action false swearing by the plaintiff after the loss in certain specified details or particulars as to the keeping of certain whiskies and intoxicating liquors in such insured building for the unlawful purpose of selling intoxicating liquors.

All parties litigant who are sui juris, including insurance companies and persons having property insured as well as others, in the eyes of the law, before the court, stand upon an equal footing, entitled to equal rights and protection, and none to special privileges. All parties are free to make whatever contracts they please, so long as no fraud or deception is practiced and the contract is legal in all respects.

Where a party voluntarily accepts a fire insurance policy from an insurance company, no fraud or deception being practiced, in an action brought upon such policy the insurance company may base its defense to such action upon the failure of the insured to comply with any of the provisions of such policy, provided the same are lawful.

Where a defendant files a joint and several demurrer to each and every of several replications, he is entitled to the same right and benefit as though he had filed a separate demurrer to every one of such replications, and an assignment based upon an order overruling such demurrer will be held good if any one of such replications is found to be bad. Such a course of procedure, economizing both time and space as it does, is to be commended, rather than condemned.

Where a party brings before an appellate court for review by writ of error a judgment which has been rendered against him, and the other party conceives that any errors which may have been committed, and upon which the plaintiff in error relies for a reversal of the judgment, were harmless, or not sufficient to work a reversal, he should avail himself of the privilege or right conferred by special rule 1 of the 'special rules to be observed in the preparation of bills of exceptions and transcripts of the record,' adopted March 2, 1905, and amended June 12, 1905, found on page 18 of such rules, prefixed to 51 Fla., and page x prefixed to 37 South., and have the evidence and such other proceedings at the trial as he conceived advisable or necessary properly incorporated in the transcript and brought before the appellate court, so that such court may be in a position to determine from a consideration of the whole case that such errors were in fact harmless. When the defendant in error fails to do this, he is in no position to complain of the application of the long-established principle that injury will be presumed when error is made to appear.

A requirement in a policy of fire insurance that the insured shall submit to an examination under oath touching the matters relating to the risk assumed by the company and the destruction of the property insured is binding and valid, and a refusal to company with this condition will preclude the insured from recovering upon the policy, where it provides that no suit can be sustained until after a compliance with such condition.

Every pleading is to be most strictly construed against the pleader thereof. It is the first essential of good pleading that it be characterized by certainty, and this quality is especially requisite in a replication.

In an action upon a fire insurance policy, a replication to a plea, which attempts to set up a waiver by the insurance company of certain provisions in the policy which such plea avers have not been complied with, and which were conditions precedent to the right of insured to bring an action upon the policy, should be clear, direct, and certain in its allegations as to the facts or acts constituting such waiver.


Cockrell & Cockrell and L. W. Blanton, for plaintiff in error.

T. B. Adams, for defendant in error.

The defendant in error, hereinafter called the 'plaintiff,' brought an action at law against the plaintiff in error, hereinafter called the 'defendant,' on a fire insurance policy. The declaration substantially follows the statutory form in actions of this nature, and a copy of the insurance policy upon which the action is based is attached thereto.

Five pleas were filed by the defendant to the declaration, as follows:

'The defendant, Southern Home Insurance Company, a corporation under the laws of the state of Florida, by...

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