Home Insurance Co. of New York v. Morrow

DOWDELL, J. The complaint as originally filed contained 15 counts, but was subsequently amended by striking out all the counts except the first 4. These four counts declared on a policy of fire insurance and were substantially in Code form. The eighth, ninth, tenth, eleventh, and fourteenth pleas, in answer to the complainant, set up the defense of a breach of the conditions of the contract sued on, in that the plaintiff, at the time of obtaining the insurance and procuring the policy, had other and additional insurance upon the-property insured. To these pleas the plaintiff filed special replication, setting up a permit by the defendant for $1,500 total concurrent insurance, including said policy, which said permit, it is averred, was indorsed on or added to said policy before the same Avas issued. The [286] permit, averred in the replication to have been indorsed on or addd to said policy, was in words and figures as follows: “$1,500 total concurrent insurance permitted, including this policy.” The defendant demurred to the replication on the several grounds specified in the demurrer. The court oveiu-uled the demurrer, and in so doing committed error. To our minds it needs no argument to demonstrate that the language employed in the permit for concurrent insurance was a limitation upon the total amount of insurance to be put upon the property insured. l»y no rule of construction can it be said, from the language employed, namely, “$1,500 total concurrent insurance permitted, including this policy,” that it was intended that $1,500 additional insurance should be allowed. Such a construction would do violence to the plain meaning of the terms of the permit. The decision in the case of L' Engle v. Scottish Union & National Insurance Company, (Fla.) 37 South. 462, 67 L. R. A. 581, cited and relied upon by counsel for appellee as being “on all fours” with the present case, was by a divided court. Without approving or disapproving what was there said, it is sufficient to say that the facts differentiate the present case from that one. The.terms of'the permit endorsed on the policies as to concurrent insurance were very different. There are other questions presented by the record; but we need not consider them, since the one which we have passed upon above is conclusive of the case. It was not denied, but was admitted by the plaintiff, on the trial below, that at the time he obtained the policy sued upon he had other insurance on the property in question to the amount, of $1,500 in the Aetna Insurance Company of Hartford. For the error pointed out,, the judgment of the court will be reversed, and the cause remanded. Reversed and remanded. Haralson, Anderson, and Denson, JJ., concur.