Tillis v. Liverpool & London & Globe Insurance , 46 Fla. 268 ( 1903 )

Carter, J.

(after stating the facts). — I. The amendment of the declaration merely enlarged the claim for damages to be recovered, so as to include attorneys’ fees, without the addition of a single allegation as to plaintiff’s right to recover upon the cause of action alleged in the declaration. The demurrer to this amendment was based solely upon the alleged unconstitutionality of the statute purporting to authorize the recovery of attorneys’ fees. 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 the recovery. It was, therefore, error to sustain the demurrer to the amendment of the declaration. Cline v. Tampa Waterworks Company, decided at this term. A motion was made, however, to strike the amendment on the same grounds, and while the order of the court does not in terms purport to sustain the motion to strike, it does in fact strike the amendment. In Jacksonville, T. & K. W. Ry. Co. v. Griffin, 33 Fla. 602, 15 South. Rep. 336, this court held that the fact that a count of a declaration may set up many elements that do not enter into the measure of damages is not ground of demurrer, but it may be cause, under section 1043, Revised Statutes, for reforming the count as calculated to embarrass the fair trial of the cause. Whether the amendment in this case could properly be regarded as calculated to embarrass the fair trial of the cause within the meaning of the statute we shall not stop to inquire, for whether so or not, it is clear that if attorneys’ fees could properly be recovered, the court was in error in striking the amendment upon the grounds stated in the motion. Chapter 4173, act approved June 2, 1893, provides in its first section “that upon the rendition of a judgment or decree by any of the courts of the State against any life or fire insurance company in favor of the holder or holders of any policy of insurance written by such company there shall be adjudged or decreed against such insurance company and in favor of the holder or holders of such policy a reasonable sum as fees and compensation for his or their attorneys or solicitors prosecuting the suit in which the recovery is had.” It is not denied that if this statute is consistent with the provisions of the State and Federal constitutions mentioned in the motion to strike, the motion should have been denied, and we find no reason to doubt that it is. The principles announced in the case of Farmers’ & Merchants’ Insurance Co. v. Dobney, — U. S. —, 23 Sup. Ct. Rep. 565, and other cases therein referred to control this case, and we are constrained to hold the statute valid as against the objections urged. The court erred, therefore, in striking the amendment of the declaration.

IL The only argument under the second assignment of error relates to the refusal to strike the third and fourth pleas. If we construe the declaration as declaring upon the policy, the third plea was proper, because the declaration expressly alleged that the policy was under seal. The execution of this sealed instrument was properly denied by the third which was a plea of non est factum, and there was no error in refusing to strike it. Circuit Court Common Law Rule No. 67.

The fourth plea was not a proper plea-even if as contended by defendant the action was upon a covenant under seal, for the reason that under rule No. 67 above referred to the proper plea is non est factum. The court should have granted the motion to strike that plea.

III. The demurrer to the replications of plaintiff to the ninth, tenth and eleventh pleas was based upon several grounds. The first two contend that the replications are departures from the declaration, and are, therefore, subject to general demurrer. A departure in pleading is a matter of substance, and ground for general demurrer. Tarleton v. Wells, 2 N. H. 306; Pease v. McKusick, 25 Me. 73; Pollard v. Taylor, 2 Bibb, 234; Keay v. Goodwin, 16 Mass. 1; 1 Chitty’s Pleading, 678. The defendant in error contends-that the declaration alleges performance of all things to be performed by the plaintiff in general terms; that the pleas traverse this general allegation by alleging specifically nonperformance of the iron safe clause; that the replications, instead' of denying the allegations of the pleas, admit them and set up excuses for non-performance though the declaration alleges performance, and, therefore, the replies constitute departures. We infer from the citation of an authority in the order of the Circuit Judge upon the demurrer that he sustained it upon these grounds, but the order being general, this court can not reverse his ruling if it finds that any ground of demurrer was good. In order to determine whether the replications constitute departures in pleading it will be necessary to ascertain what allegations of the declaration were material, treating it as a declaration upon the policy. 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, Revised Statutes, be by a general averment. 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. Redman v. Aetna Ins. Co., 49 Wis. 431, 4 N. W. Rep. 591; Chambers v. Northwestern Mut. Life Ins. Co., 64 Minn. 495, 67 N. W. Rep. 367; Forbes v. American M. L. I. Co., 15 Gray, 349, S. C. 77 Am. Dec. 360; Johnson v. Northwestern Live Stock Ins. Co., 94 Wis. 117, 68 N. W. Rep. 868; Insurance Co. v. Crunk, 91 Tenn. 376, 23 S. W. Rep. 140; Whipple v. United Fire Ins. Co., 20 R. I. 260, 38 Atl. Rep. 498; 3 May on Insurance, sec. 590; 4 Joyce on Ins., sec. 3684. The iron safe clause in this case was a promissory warranty in the nature of a condition subsequent, and it was not necessary to allege a compliance with its terms in the declaration. Western Assur. Co. v. Redding, 68 Fed. Rep. 708; Kingman v. Lancashire Ins. Co., 54 S. C. 599, 32 S. E. Rep. 762; Copeland v. Western Assur. Co., 43 S. C. 26, 20 S. E. Rep. 754. In Levy v. Peabody Ins. Co., 10 West Va. 560, it was-even held that an allegation that plaintiff had on his part performed all conditions of the policy, meant conditions that had not been waived, and that if defendant pleads that a certain specified condition has been violated by the plaintiff, plaintiff may reply a waiver. It is not necessary to approve the rule laid down in the West Virginia case, as under the principles announced above the allegations of the declaration in regard to performance must be construed with respect to conditions precedent, and as compliance with the iron safe clause is not a condition precedent, but a promissory warranty in the nature of a condition subsequent, it is not embraced within the allegations of performánce contained in the declaration. Kingman v. Lancashire Ins. Co., supra. Even if we construe the declaration as alleging performance of that clause, such allegation may be rejected as surplusage. Glens Falls Ins. Co. v. Porter, 44 Fla. 598, 33 South. Rep. 473. It results, therefore, that as a breach of the iron safe clause was a matter of affirmative defense to be set up by plea, and not a condition precedent, performance of which was required to be averred in the declaration, it was entirely proper for the plaintiff to reply a waiver, as by so doing he was not departing from the allegations of the declaration in any material matter. 1 Chitty on Pleadings, *674.

Other grounds of demurrer claim that the alleged waiver is pleaded as a legal conclusion, that it is not alleged to be supported by a consideration and that facts are not alleged showing that plaintiff was misled to his prejudice. It appears from the declaration that plaintiff gave defendant immediate notice of the loss; that defendant’s agent came to where the property was destroyed, made an adjustment of the loss, expressed himself satisfied concerning it, found that plaintiff had sustained a loss of $2,886.13, and thereupon then and there agreed and promised to pay plaintiff the amount of money secured to be paid by the policy. These allegations of the declaration are not denied by the ninth, tenth and eleventh pleas, and the replications allege that after knowledge of the breach of the iron safe clause' the defendant promised to pay the policy. These allegations do not set up waiver as a legal conclusion, but aver the fact to be that defendant promised to pay the policy after knowledge of the breach of the iron safe clause. The object and purpose of the iron safe clause was to enable the defendant to secure reliable data upon which to base an adjustment of the loss. These pleas do not deny that plaintiff had kept books and the inventory as required, but alleged merely that they were not kept in the proper place and that they were not produced because burned by the fire that destroyed the building. As the books and inventory were necessary or useful only in the matter of the adjustment, it must be assumed that defendant knew of their destruction and the breach of the iron safe agreement when it came to adjust the loss, and the eleventh plea so alleges, yet according to the allegations of the declaration which these pleas do ncit deny, and of the replications, the defendant adjusted the loss and agreed and promised to pay the policy after notice of this breach, of the agreement which under the policy wrought a forfeiture. It can not be assumed that the agent could have adjusted the loss without causing the plaintiff some trouble or inconvenience, but whether so or not we thiftk the conduct of the agent in adjusting and agreeing to pay the loss after knowledge of the facts which would have caused a forfeiture of the policy operates as a waiver of the forfeiture, and that the replications are good as against the demurrer. This court has recognized the doctrine of waiver as applicable to insurance policies in the case of Taylor v. Glens Falls Ins. Co., 44 Fla. 273, 32 South. Rep. 887, where it was held that a fire insurance company by unconditionally denying any liability whatsoever on its policy upon the destruction of the property covered thereby, waived proof of loss provided for in such policy'. It is not always essential that the waiver be supported by a new consideration, nor that the facts be sufficient to constitute an equitable estoppel. Forfeitures are not favored in the law, and notwithstanding the strong language used in declaring the forfeiture that the policy "shall become null and void,” the policy is not void, but voidable, and the party who has the right to declare it void may thereafter treat it as valid and it will be so. Indian River State Bank v. Hartford Fire Ins. Co., decided at this term; Oakes v. Manufacturers’ Fire and Marine Ins. Co., 135 Mass. 248; Viele v. Germania Insurance Co., 26 Iowa, 1; Georgia Home Ins. Co. v. Allen, 119 Ala. 436, 24 South. Rep. 399; Kingman v. Lancashire Ins. Co., supra; Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Corson v. Anchor Mutual Fire Ins. Co., 113 Iowa, 641, — N. W. Rep. — ; Rokes v. Amazon Insurance Co., 51 Md. 512. In the case of Gibson Electric Co. v. Liverpool and London and Globe Ins. Co., 159 N. Y. 418, 54 N. E. Rep. 23, after reviewing quite a number of New York decisions the court say “although the decisions of this court, of which we have made this brief review, seem to warrant the conclusion that an insurer, even under the provisions of a standard policy, may estop itself from claiming, or may waive, a forfeiture under its condi-tions by its acts and the requirements it makes of the insured after knowledge of the forfeiture, still the circumstances and acts which are required to constitute such an estoppel or waiver seem to be quite firmly established. Thus, in the absence of an express waiver, at least some of the elements of an estoppel must exist. The insured must have been misled by some act of the insurer, or it must, after knowledge of the breach, have done something which could only be done by virtue of the policy, or have required something of the assured which he was bound to do only under a valid policy or have exercised a right which it had only by virtue of the policy. Such an estoppel or waiver must be established by the person claiming it by a preponderance of evidence, and neither an estoppel, nor a waiver of the breach of a condition after forfeiture by reason thereof, can be inferred from mere silence or inaction.” In this case, after notice of the fact constituting the forfeiture, the company proceeds to adjust the loss and upon such adjustment, finding that the loss far exceeds the amount of the policy, promises and agrees to pay the amount of the policy. If these acts do not constitute an express waiver, they could only have been done by virtue of the obligation of a valid policy, and therefore the company knowing of the forfeiture, by such acts waived it, and are bound by such waiver. Cotton States Life Insurance Co. v. Edwards, 74 Ga. 220; City Planing and Shingle Mill Co. v. Merchants’, Manufacturers’ and Citizens’ Mut. Fire Ins. Co., 72 Mich. 654, 40 N. W. Rep. 777, S. C. 16 Am. St. Rep. 552; Eagan v. Aetna Fire and Marine Ins. Co., 10 West Va. 583; Levy v. Peabody Ins. Co., 10 West Va. 560; Fink v. Lancashire Ins. Co., 60 Mo. App. 673; German Ins. Co. v. Gibson, 53 Ark. 494, 14 S. W. Rep. 672; Farmers’ and Merchants’ Ins. Co. v. Chesnut, 50 Ill. 111; Billings v. German Ins. Co., 34 Neb. 502, 52 N. W. Rep. 397; Georgia Home Ins. Co. v. Allen, 119 Ala. 436, 24 South. Rep. 399; Kingman v. Lancashire Ins. Co., 54 S. C. 599, 32 S. E. Rep. 762; Corson v. Anchor Mutual Fire Ins. Co., 113 Iowa, 641, N. W. Rep.

We are referred to a clause in the policy that “the use of general terms, or anything less than a distinct specific agreement clearly expressed and endorsed on this policy shall not be construed as a waiver of any printed or written condition or restriction .therein,” but we do not see that such clause affects the question here. It is doubtful if it has reference to waivers of forfeitures made after a loss has occurred, as its language seems applicable to waivers of the conditions or restrictions in the policy. But however that may be, it is a clause which may itself be waived, and if the company adjusted the loss and promised to pay the policy with knowledge of the forfeiture, it will be bound, notwithstanding such waiver was not endorsed 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 endorsed upon the policy, will bind the company to such waiver, notwithstanding the clause referred to.

The judgment of the Circuit Court of Alachua county is reversed and the cause remanded with directions to overrule the demurrer to and motion to strike the amended declaration, to grant the motion to strike the fourth plea and to overrule the demurrer to plaintiff’s replications to the ninth, tenth and eleventh pleas, and for such further proceedings as may be conformable to law and consistent with this opinion.

(Hooker, J., and Cockrell, J., being disqualified, took no part in the decision of this case.)