A petition for rehearing has been filed in this case. Grounds 1 and 2 of the petition read as follows:
"1. Because the Court completely misinterpreted the contention of Plaintiff in Error. The Court on page 7 of the opinion says `the appellants' contention is that the policy must be put into evidence under the best evidence rule and that parol evidence cannot be used to establish the issuance of the policy.' Plaintiff in Error has never made such contention, but on the contrary stated that parol evidence of the indemnity policy was applicable if it was the best evidence. (See page 4 of the Reply Brief.)
"2. Because there was no contention of, or attempt on the part of the Plaintiff in Error to rely on defenses that might have been raised between insurer and insured."
In fairness to counsel for plaintiff in error, we find that page 4 of the reply brief substantiates the first paragraph above quoted, and the writer makes due apologies for misinterpreting the contentions of plaintiff in that regard.
As regards the 2nd paragraph, while we discussed in the opinion the proposition that the plaintiff in error could not rely on defenses that might have been raised between the insurer and the insured, we did not state in the opinion that any such contention was made by plaintiff in error; nor did we intend to imply that any such contention was made; but this proposition of law was merely mentioned as supporting the reasoning of the Court in arriving at the conclusions stated in the opinion. Not being satisfied that the reasoning of the opinion or the conclusions reached therein were erroneous, the petition for rehearing will be denied.
The "subrogation receipt and assignment" referred to in the Court's opinion reads, as shown by the record, as follows: *Page 105
"RECEIVED of the Home Insurance Company of New York, the sum of Three hundred sixty-eight and 75/100 Dollars, being in full of all claims and demands for loss and damage by collision which occurred on the 10th day of July, 1933, to property insured under Home Policy numbered 5-435864 issued at the Jacksonville, Fla., CCC agency of said Company.
"Now, therefore, in consideration of said payment, we hereby assign, set over, transfer, subrogate and substitute the said Home Insurance Company of New York, its successors and assigns, to any and all rights, claims, interests or action which we have or ought to have against the Firestone Service Stores, Inc., who may be liable or hereafter adjudged liable for the burning or destruction of said property, or against any person, persons or corporation, to the extent of the said sum of Three hundred sixty-eight and 75/100 Dollars, and we hereby assign, transfer and set over the same to the said Home Insurance Company of New York or its successors or assigns as aforesaid: in accordance with the terms of said Policy of Insurance, which are:
"`If this Company shall claim that the loss was caused by the act of neglect of any person or corporation, private or municipal, this Company shall on payment of the loss be subrogated to the extent of such payment to all right of recovery to the Assured for the loss resulting therefrom, and such right shall be assigned to this Company on receiving such payment.'
"We hereby expressly authorize and empower the said Home Insurance Company of New York to sue, compromise or settle in my name or otherwise to the extent of the money paid as aforesaid. It being understood that any action taken by said Home Insurance Company shall be without charge or cost to me or to my legal representative. *Page 106
"Dated this 3rd day of September, 1933, at Jacksonville, Fla.
"WITNESS: "W.G. RYAN. "IRVIN J. WYNN."
We think this document shows that the insurance policy referred to and quoted from was a contract of indemnity, and shows that the insurance company had actually indemnified Wynn, the insured, by paying to him the amount of the loss sustained.
After due consideration of all the grounds of the petition for rehearing, our conclusion is that the same should be and is hereby denied.
WHITFIELD, P.J., and CHAPMAN, J., concur.
ELLIS, C.J., and TERRELL and BUFORD, J.J., concur in the opinion and judgment.