W. W. LEAVINE, APPELLANT,
v.
THE BELT AUTOMOBILE INDEMNITY ASSOCIATION, A VOLUNTARY ASSOCIATION, WHEREOF THE ALYEA-NICHOLS COMPANY IS ATTORNEY IN FACT, C. J. ALYEA, PRESIDENT, AND F. C. NICHOLS, SECRETARY AND TREASURER, APPELLEE
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This case involves a suit to reform and enforce an insurance policy due to a mutual mistake in describing the insured automobile. The appellate court found that the lower court erred in sustaining a general demurrer to the bill, as the allegations stated a ground for equitable relief.
No, the lower court erred in sustaining the general demurrer. The bill stated sufficient grounds for equitable relief, and therefore, the demurrer should have been overruled.
“This suit is to reform and enforce a policy of insurance issued by the defendant insurance company to indemnify complainant against loss or damage by theft, robbery or pilferage of an automobile.”
Describes the nature of the lawsuit and the relief sought.
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Join FLexlaw to unlock all legal intelligenceThe complainant sought to reform an insurance policy that misdescribed the automobile intended to be insured due to mutual mistake. The complainant's …
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West, J.
-This suit is to reform and enforce a policy of insurance issued by the defendant insurance company to indemnify complainant against loss or damage by theft, robbery or pilferage of an automobile. The bill alleges that because of inadvertence and mistake, which were mutual and common to both parties to the contract, there was a misdescription of the automobile in the application for and policy of insurance; that the automobile owned by complainant and intended to be insured was afterwards stolen and complainant, as a result, sustained a loss against which he is indemnified by the contract. There was a general demurrer to the bill, which was sustained, and this appeal is from that order. It is conceded that mutual mistakes in a written policy of insurance may be corrected and the policy made to conform to the contract actually made, and such reformed contract may be enforced in equity. This doctrine has been frequently reiterated by this court. Hanover Fire Ins. Co. v. Hiers, 79 Fla. 408, 84 South. Rep. 605; Rosenthal v.
First Nat'l. Fire Ins. Co., 74 Fla. 371, 77 South. Rep. 92; Southern States Fire Ins. Co. v. Vann, 69 Fla. 544, 68 South. Rep. 645; Fidelity Phenix Fire Ins. Co. v. Hilliard, 65 Fla. 443, 62 South. Rep. 585; Phenix Ins. Co. v. Hilliard, 59 Fla. 590, 52 South. Rep. 799.
It is not considered necessary to set out at length the allegations of the bill. The rule is that if there is any ground for equitable relief stated in the bill, a general demurrer to the bill will be overruled. Weathers v. Tyler, 86 Fla. 181, 97 South. Rep. 311; Wells v. Williams, 80 Fla. 498, 86 South. Rep. 336; Shone v. Bellmore, 75 Fla. 515, 78 South. Rep. 605; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 South. Rep. 603; Mitchell v. Mason, 65 Fla. 208, 61 South. Rep. 579.
The bill in this case is not so lacking in equity as to be amenable to general demurrer. The order sustaining the demurrer is erroneous.
Reversed. Whitfield, P. J., and Terrell, J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.
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Citator
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The Fed. Land Bank of Columbia v. Godwin, 107 Fla. 537 (Fla. 1931)…demurrer addressed to the entire bill should be overruled if there is any equity in the allegations of the bill (Craft v. Craft, 74 Fla. 262, 76 So. 772; Downing v. Carlton, 76 Fla. 490, 80 So. 57; Leavine vs. Belt Automobile Indemnity Association, 88 Fla. 553, 102 So. 768; also Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408, and cases there cited), and that such demurrer operates as an admission of all the allegations in the bill which are well pleaded. Reid v. Barry, 93 Fla. 849, 112 So. 946; Amos…
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Walker v. Close, 98 Fla. 1103 (Fla. 1929)…hole of the bill, the immediate question before us for consideration is that if there is any ground for equitable relief stated in the bill, a general demurrer to the bill should have been overruled. Leavine v. Belt Automobile Indemnity Association, 88 Fla. 553, 102 So. R. 768; Mitchell v. Mason, 65 Fla. 208, 61 So. R. 579. There are, among others, two main grounds assigned and argued by appellant as reasons why he contends that the order of the lower court sustaining the demurrer should be reversed, name…
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Schmidt v. Maude C. Kibben and Edward Kibben, 100 Fla. 1684 (Fla. 1931)…Fla. 593, 54 So. R. 899; Wells v. Williams, 80 Fla. 498, 86 So. R. 336; Battey v. Bettey, 92 Fla. 512, 109 So. R. 584; Hall v. Forman, 94 Fla. 682, 114 So. R. 560; Boone v. Gay, 84 Fla. 589, 94 So. R. 501; Leavine v. Belt Automobile Indemnity Ass’n, 88 Fla. 553, 102 So. R. 768; Walker v. Close, 98 Fla. 1103, 325 So. R. 521. [*1687] Appellants in their brief contend that there is no mutuality in the contract sought to be enforced, because the vendor at the time of making the contract was a married woman and…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mitchell v. Mason, 65 Fla. 208 (Fla. 1913)
- Rosenthal v. First Nat'l Fire Ins. Co. of the United States, 74 Fla. 371 (Fla. 1917)
- Amma H. Shone v. Bellmore, 75 Fla. 515 (Fla. 1918)
- Fid. Phenix Fire Ins. Co. of N.Y. v. Hilliard, 65 Fla. 443 (Fla. 1913)
- Phenix Ins. Co. v. Hilliard, 59 Fla. 590 (Fla. 1910)
- Jewell P. Wells v. Williams, 80 Fla. 498 (Fla. 1920)
- City of W. Palm Beach v. Ryder, 73 Fla. 558 (Fla. 1917)
- Hanover Fire Ins. Co. v. Hiers, 79 Fla. 408 (Fla. 1920)
- S. States Fire Ins. Co. v. Vann, 69 Fla. 544 (Fla. 1915)
- Weathers v. Tyler, 86 Fla. 181 (Fla. 1923)