U.S. Fire Ins. Co. v. Dickerson

• Decision Date: 17 December 1921
• Citation: 90 So. 613,82 Fla. 442
• Parties: UNITED STATES FIRE INS. CO. v. DICKERSON et al.
• Court: Florida Supreme Court

90 So. 613

82 Fla. 442

UNITED STATES FIRE INS. CO. v. DICKERSON et al.

Florida Supreme Court

December 17, 1921

Error to Circuit Court, Orange County; C. O. Andrews, Judge.

Action by Mrs. T. D. Dickerson and another against the United States Fire Insurance Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Whitfield J., and Brown, C.J., dissenting in part.

Syllabus by the Court

SYLLABUS

Objections to evidence should be specific. Objections to evidence should be specific, clearly indicating not only the grounds of objection but the particular part of the document, or thing introduced, or statement of the witness to which the objection is deemed to be applicable.

Motion to strike evidence should be confined to part considered objectionable. A motion to strike evidence which is deemed inadmissible should be confined to that part of the evidence which is objectionable, and not be directed to the entire statement or testimony of the witness as a whole.

Statute providing for attorney's fees on unsuccessful defense by insurance company valid under police power. Section 4263 Revised General Statutes, which provides for the payment of attorney's fees to the plaintiff by an insurance company or association which unsuccessfully defends an action upon a policy of insurance issued by it, is valid as an appropriate police regulation of a business affected with a public interest.

Statutory attorney's fees should be demanded in declaration. Attorney's fee provided for by statute to be paid by insurance companies, corporations, or associations which unsuccessfully defend actions upon policies of insurance issued by them should be demanded in the declaration, as if the action sought to enforce a penalty.

Evidence as to attorney's fees inadmissible where not demanded attorney's fees may be allowed upon agreement between parties. Where a declaration upon an insurance policy does not contain a clause demanding the payment to plaintiff of an attorney's fee or alleging what sum is, under the circumstances, a reasonable attorney's fee, evidence upon the subject is inadmissible, and judgment should not be entered therefor; but in such case, if the parties during the trial agree among themselves, either in writing or orally upon a sum to be paid by the defendant as a reasonable attorney's fee, in the event of judgment for the plaintiff the judgment will not be reversed because it adjudges the payment of such attorney's fee.

Destroyed property located in buildings not named in policy held not covered. In an action upon a fire insurance policy insuring against loss or damage to personal property by fire, where the policy contains a clause to the effect that the property described in the policy is to be covered by the insurance only while the property is located and contained in a certain building, it is error to refuse to instruct the jury that it should not consider the value of any property destroyed and described in the policy which at the time of its destruction was located in a building other than the one named in the policy.

Refusal of correct instructions not error, if benefit given by general charge. Where a correct instruction is requested and refused, it will not be deemed to be reversible error if the same benefit sought by the complaining party in the instruction requested is obtained by an instruction given by the court in its general charge.

Plea of false swearing in proof of loss held to support instructions as to burden of proof. Under a plea to a declaration upon a fire insurance policy, averring that the plaintiff was guilty of false swearing in the proof submitted by her of the property which she claimed was destroyed, it is not error to instruct the jury that the plea set up an affirmative defense, and the burden was upon the defendant under it to show, not only that the plaintiff swore falsely, but that the oath was made for the purpose of deceiving and defrauding the defendant.

Refusal of special instruction not error, if covered by charge as a whole. The charge of the court in its entirety upon any one phase of the case should be considered before it can be determined that a particular requested charge upon an isolated point was erroneously refused. If the charge considered as a whole is without error and covers the point embraced in the refused instruction, the refusal to give the special instruction is not reversible error.

Evidence examined and found sufficient to support the verdict.

COUNSEL

Knight, Thompson & Turner, of Tampa, and Davis & Giles, of Orlando, for plaintiff in error.

Dickinson & Dickinson, of Orlando, for defendants in error.

OPINION ELLIS, J.

This was an action brought by Mrs. T. D. Dickerson, in which she was joined by J. W. Dickerson, her next friend, against the United States Fire Insurance Company upon a fire insurance policy issued to her by the above-named company, in the sum of $1,500, upon the household and kitchen furniture, family wearing apparel, traveling equipment, books, musical instruments, pictures, engravings, firearms, bicycles, bronzes, statuary, articles of virtue, jewelry in use, household stores, and other articles used in housekeeping, only while contained in the two-story frame building and its additions with shingle roof, occupied as a dwelling house by tenant, 'situate No. detached on the south side of Orlando-Oakland brick road in western portion of Winter Garden, Fla.'

The declaration alleged that on the 27th of February, 1919, which was about one month after the policy was issued, the plaintiff's property, as described in and covered by the said policy of insurance, 'was burned and destroyed by fire and damaged, and loss was thereby occasioned to the said plaintiff to the amount of $1,500 in such circumstances as to come within the promise and undertaking of said policy.' It was further alleged that the defendant had due notice of the loss on the 7th day of March following, yet the defendant had not paid to the plaintiff the amount of the loss and damage sustained by her.

The insurance company, by its attorneys, interposed four pleas, which were, in substance, as follows: First, that the plaintiff Mrs. Dickerson was guilty of fraud touching the subject-matter of the insured, in that after the policy went into effect she removed many of the articles insured under the policy from the building at the place where the property was insured, and that much of the property was not in the building at the time of the fire mentioned in the declaration; second that the property insured had ceased to be contained in the building described in the policy at the time of the fire; third, that the fire was intentionally caused or procured by the plaintiff. The fourth plea averred:

'That the policy contained the following provision: '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 nay matter relating to this insurance, or the subject thereof, whether before or after loss.' That the plaintiff swore falsely after the fire touching the loss alleged to have been sustained by her, in that, in the proof of loss filed by her she stated that no articles were included in the schedule attached to her proof of loss that did not belong to her or were not contained in the building and damaged or destroyed by fire, that no property had been concealed which had been saved, and that no attempt had been made to deceive the insurer in any manner as to the cause or extent of her loss. That in the schedule submitted to the company as a basis of plaintiff's claim there were many articles not owned by her and many articles not in the building at the time of the fire, and the plaintiff knowingly and willfully swore falsely, as averred, with intent

The plaintiff joined issue upon these pleas

The plaintiff joined issue upon these please and the cause came on for trial in the circuit court for Orange county.

There was a verdict and judgment in the sum of $750 and attorney's fees of $225. The insurance company seeks by writ of error to reverse the judgment and assigns 19 errors of which the fourth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, and eighteenth appear to have been abandoned. The first and second assignments of error grew out of the introduction in evidence by the plaintiff of a list of the property alleged to have been destroyed with the alleged value set down opposite each article on the list. The defendant objected to the statement of the value only upon the ground that the figures did not represent the value the plaintiff placed upon the articles, but that it was here and her son's joint judgment; that the value given in the statement was hearsay, which she obtained from various dealers; and that the value set opposite the articles was an estimate of the value of the new articles and does not purport to give the value of the articles at the time and place of destruction. This objection was raised to a question propounded by plaintiff's counsel to the plaintiff, who was a witness in her own behalf, which question was as follows: 'Did you get any estimate of its present-day value at the time it was destroyed or for new silver?' To this question the witness answered as follows: 'New silver is what I priced.' Her counsel inquired, 'And you know this is correct?' To this question there was no objection, although it is made the basis of two assignments of error. To the question the witness answered, 'Yes, sir; I do.' The...