Tillis v. Liverpool & London & Globe Ins. Co.

• Decision Date: 15 July 1903
• Citation: 35 So. 171,46 Fla. 268
• Parties: TILLIS v. LIVERPOOL & LONDON & GLOBE INS. CO. [*]
• Court: Florida Supreme Court

35 So. 171

46 Fla. 268

TILLIS v. LIVERPOOL & LONDON & GLOBE INS. CO. ^[*]

Florida Supreme Court

July 15, 1903

In Banc. Error to Circuit Court, Alachua County; William A Hocker, Judge.

Action by W. H. Tillis against the Liverpool & London & Globe Insurance Company. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A demurrer does not lie to a declaration because it claims other or greater damages than the case made legally entitles the plaintiff to recover, demurrer not being the proper pleading by which to test the extent of recovery.

2. Chapter 4173, Act approved June 2, 1893 (Laws 1893, p. 101) authorizing the recovery of reasonable attorney's fees against life and fire insurance companies in suits upon policies issued by them, is not in contravention of section 1, Declaration of Rights, nor section 1, art. 14, Const. U S.

3. The execution of a policy of insurance under seal is properly denied by the plea of non est factum, and a plea to an action upon such policy 'that defendant did not covenant with plaintiff as alleged,' being inapplicable, should be stricken on motion.

4. A departure in pleading is a matter of substance and ground for general demurrer.

5. In declaring upon an insurance policy it is not necessary to allege performance of promissory warranties or conditions subsequent, but only of conditions precedent, which may under section 1045, Rev. St., be by general averment. Breaches of promissory warranties and conditions subsequent are matters of defense to be pleaded by the defendant, and it is not necessary that the plaintiff anticipate such defenses, and negative them by averring performance in the declaration.

6. The 'iron-safe clause' usually found in fire insurance policies upon stocks of merchandise, which requires the assured to take and preserve an itemized inventory of stock and to keep a set of books, and to keep such books and inventory securely locked in a fireproof safe at certain times, or in some place not exposed to a fire that would destroy the building containing the stock of merchandise, and provides that failure to take the inventory shall render the policy void, and that in the event of failure to produce the set of books and inventory for the inspection of the company the policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon, is a promissory warranty in the nature of a condition subsequent. A breach of such clause is a matter of affirmative defense to be set up by plea, and not a condition precedent, performance of which is required to be averred in the declaration; and hence a replication alleging a waiver of such clause, or of a forfeiture accruing upon a breach thereof, is not a departure in pleading, although the declaration sets forth the iron-safe clause, and avers generally the performance of all conditions precedent.

7. Upon the happening of a total loss under a fire insurance policy upon a stock of merchandise the assured gave immediate notice to the company, who, by its agent, proceeded to adjust the loss. After knowledge of a forfeiture, caused by failure of the assured to comply with the requirements of the 'iron-safe clause,' the company, by its agent, made an adjustment of the loss, expressed itself satisfied concerning it, found that the assured had sustained a loss far in excess of the sum insured, and thereupon then and there agreed and promised to pay the insured the amount of money secured to be paid by the policy. Held, that the forfeiture was waived, and the company could not thereafter avail itself of such forfeiture to defeat collection of the money agreed to be paid by the policy.

8. A clause in an insurance policy that 'the use of general terms, or anything less than a distinct specific agreement clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein,' may itself be waived; and if the company adjusts a loss and promises to pay the policy after knowledge of a forfeiture accruing by reason of the breach of a promissory warranty therein on the part of the assured, it will be bound notwithstanding the fact that such waiver was not indorsed on the policy. The adjustment and unconditional promise to pay the loss with full knowledge of the forfeiture, with no reservation that the waiver was to be indorsed upon the policy, will bind the company to such waiver, notwithstanding the clause referred to.

COUNSEL

B. A. Thrasher, for plaintiff in, error.

A. W Cockrell & Son, for defendant in error. In August, 1897, plaintiff in error began an action against defendant in error in the circuit court of Alachua county. The declaration, containing one count, alleged that defendant issued its policy of insurance under seal to plaintiff, whereby it insured plaintiff in the sum of $1,800 against loss or damage by fire upon his stock of general merchandise while contained in a certain store building at Rochelle for the period of one year from September 7, 1896. The declaration set forth the policy at length, and alleged that plaintiff at the time it was issued, and from thence until the happening of the loss and damage, was the sole and absolute owner of the property; that on February 2, 1897, the property insured was totally consumed and destroyed by fire, whereby plaintiff sustained loss and damage to the property to the amount of $2,886.13; that forthwith after the happening of said loss plaintiff gave notice thereof to the defendant, and the defendant, through its agent, came to where said property was destroyed, made an adjustment of said loss, expressed itself, through said agent, to be perfectly satisfied concerning said loss, found that plaintiff had sustained a loss of $2,886.13, and then and there agreed and promised to pay plaintiff the amount of money named and secured in said policy, to wit, $1,800.

The declaration also alleged that plaintiff had kept and performed all things in said policy contained on his part to be kept and performed, and, although all conditions had been performed and fulfilled by him, and all events and things had happened to entitle him to a performance by defendant of its contract of insurance, yet the defendant, though often requested, had not paid plaintiff the sum due under said policy on account of the loss sustained, or any part thereof, but refuses to do so.

Attached to and made a part of the policy as set forth in the declaration was what is known as the 'iron-safe clause,' in the following language: 'The following covenant and warranty is hereby made a part of this policy: 'First. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void. Second. The assured will keep a set of books which shall clearly and plainly present a complete record of the business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory as provided for in first section of this clause, and during the continuance of this policy. Third. The assured will keep such books and inventory, if such has been taken, securely locked in a fireproof safe at night, and at all times when the building mentioned in this policy is not actually open for business, or failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building. In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.”

Defendant demurred to the declaration, but the demurrer was overruled, and thereafter plaintiff, by leave of the court, amended his declaration so as to claim an attorney fee of $190 in addition to the $1,800 claimed as damages for loss on the property.

The defendant demurred to the declaration as amended, the sixteenth, seventeenth, and eighteenth grounds thereof being addressed only to the amendment, those grounds being, in substance, that the amendment was based wholly on state legislation, viz., chapter 4173, Act June 2, 1893 (Laws 1893, p. 101), and that such legislation is in contravention of section 1, Declaration of Rights, Const. 1885, as to equality before the law, and in contravention of section 1, art. 14, Const. U.S., in that it operates to deprive defendant of property without due process of law, and to deny defendant the equal protection of the laws. At the same time defendant moved to strike the amendment to the declaration upon the same grounds.

On February 26, 1898, the court made an order, which, after reciting that the cause was submitted upon the defendant's demurrer to the amendment of the declaration, is as follows: 'It seems to the court that the demurrer to the amendment of the declaration is well taken, and it is therefore considered and ordered that the said demurrer be, and the same is hereby, sustained, and said amendment of the declaration is stricken.'

On March 11, 1898, the defendant filed eleven pleas, the first two of which were stricken upon motion of plaintiff. The others are substantially as follows: (3) That the alleged deed is not its deed.

(4) That this defendant did not covenant with plaintiff as alleged.

(5) That defendant never, through its agent or otherwise, made any adjustment of said loss, or expressed itself, through its agent or otherwise, satisfied concerning said loss as alleged.

(6...