v. Royal Ins. Co. (1898) 156 N. Y. 327, 42 L.R.A. 485, 50 N. E. 863 (what constitutes commencement of action), reversing Quinn v. Royal Ins. Co. (1894) 81 Hun, 207, 30 N. Y. Supp. 714 (what constitutes a commencement of action); Bannister v. Michigan Mut. L. Ins. Co. (1906) 111 App. Div. 765, 97 N. Y. Supp. 843 (prior action); Bellinger v. German Ins. Co. (1906) 51 Misc. 463, 100 N. Y. Supp. 425, affirmed on opinion below in (1906) 113 App. Div. 917, 100 N. Y. Supp. 424, which was affirmed in (1907) 189 N. Y. 533, 82 N. E. 1124 (prior action). And see the reported case (GEORGE v. CONNECTICUT F. INS. Co. ante, 80). See also Holly v. London Assur. Co. (1915) 170 N. C. 4, 86 S. E. 694, and statements in Hay v. Star F. Ins. Co. (1879) 77 N. Y. 235, 33 Am. Rep. 607, affirming (1878) 13 Hun, 496. Compare Wilkinson v. First Nat. F. Ins. Co. (1878) 72 N. Y. 499, 28 Am. Rep. 166, which seems to be overruled by Hamilton v. Royal Ins. Co. (1898) 156 N. Y. 327, 42 L.R.A. 485, 50 N. E. 863, supra.

Tracy v. Queen City Fire Ins. Co. (La.) supra, was an action on a fire insurance policy which provided, inter alia, as follows: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or until after full compliance. by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire." The plaintiffs, however, insisted that the running of the limitation period was suspended by the timely commencement of a prior suit, which was dismissed. The court seemingly approved the general rule that the contractual limitation is not subject to the exceptions to the general Statute of Limitations, but agreed with the plaintiff that such a rule was not applicable, because the limitation period was not in reality the result of a contract, the policy being issued pursuant to the terms of a statute providing that "no fire insurance company shall issue fire insurance policies on property in this state other than those which shall conform to the New York standard form of fire in

surance policy." Consequently, since the law had prescribed the limitation period, it was held that the general rules of prescription as set forth in the Code should be applicable thereto. The court said: "Where the law directly or indirectly prescribes a limitation of actions, in logic and reason, such limitation should be controlled and governed by the general provisions of the law relating to the subject. In all statutes of limitations, there are exceptions in favor of a certain class of persons, such as minors and interdicts, and provisions relating to the interruption of the current of prescription by acknowledgment, judicial demand, etc. Where, as in the case at bar, the law prescribes the limitation, and the parties cannot help themselves, there is no good reason, in law or in equity, for not applying the general rules of prescription laid down in the Civil Code, one of which provides that citation shall interrupt prescription, 'whether the suit has been brought before a court of competent jurisdiction or not.' Art. 3518."

In Bellinger v. German Ins. Co. (1906) 51 Misc. 463, 100 N. Y. Supp. 425, affirmed in (1906) 113 App. Div. 917, 100 N. Y. Supp. 424, which was affirmed in (1907) 189 N. Y. 533, 82 N. E. 1124, an action on a fire insurance policy specifying a limitation period of one year from the time of the fire, it was pointed out that this specification was one provided by the insurance law, prescribing a standard form of policy (Laws 1886, p. 721, chap. 488, §§ 2, 3; Laws 1892, p. 1980, chap. 690, § 121; Penal Code § 577d); that consequently § 405 of the Code of Civil Procedure as to the effect of a prior action to toll the Statute of Limitations was applicable thereto, and that the benefits to which the plaintiff was entitled thereunder were not affected by § 414 of the Code of Civil Procedure, which provided, inter alia, as follows: "The provisions of this chapter apply, and constitute the only rules of limitation applicable to a civil action or special proceeding, except in one of the following cases: (1) A case where a different limita

tion is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties." The limitation provisions in the policies were considered as prescribed by law, and not as the result of the contract of the parties. The court said: "The situation is the same as though the clause in the policy read: 'No suit or action on this policy for the recovery of any claim shall be maintained in any court of law or equity unless commenced within twelve months after the fire, except in the cases provided for in § 405 of the Code of Civil Procedure.'"

Hamilton v. Royal Ins. Co. (1898) 156 N. Y. 327, 42 L.R.A. 485, 50 N. E. 863, involved the question whether § 399 of the New York Code of Civil Procedure applied to the limitation in the standard policy of fire insurance sued on. That section of the Code provides as follows: "An attempt to commence an action in a court of record is equivalent to the commencement thereof against each defendant, within the meaning of each provision of this act, which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff," etc. It was contended that the contractual limitation was unaffected by the statutory provision, in view of the provisions of § 414 of the Code of Civil Procedure, set out in the preceding paragraph. The court said: "It is obvious that, by § 414, the legislature intended to and did recognize the right of parties, by their written contract, to prescribe a shorter limitation for its enforcement than that contained in the general limitations of the Code. It is equally clear that it intended to make the limitations prescribed by special statute, or by the contract of the parties, a part of the general law controlling the limitation of actions, and to make all the rules of limitation recognized by that act subject to the general provisions of chapter 4. Any other rule would result in unsettling the law, and in many cases would work the greatest injustice. If those general provisions are not applicable to such

a case, then we have a plain and definite system of law which governs one class of limitations, but no law or procedure whatsoever applicable to the other classes." Furthermore it was pointed out that since the policy in question was drawn in accordance with the insurance laws of the state. the limitation clause was not really contractual, but was specially prescribed by law, so that on principle and on the authority of other cases (Hayden v. Pierce (1895) 144 N. Y. 512, 39 N. E. 638; Titus v. Poole (1895) 145 N. Y. 414, 40 N. E. 228), § 399, heretofore quoted, was applicable to the case, and governed the construction of the limitation period in the policy. The case of Wilkinson v. First Nat. F. Ins. Co. (1878) 72 N. Y. 499, 28 Am. Rep. 166, was considered, and it was remarked that the part of that decision which was contrary to the present holding was needlessly made, and was not controlling. The decision in Quinn v. Royal Ins. Co. (1894) 81 Hun, 207, 30 N. Y. Supp. 714, was reversed.

In the reported case (GEORGE V. CONNECTICUT F. INS. Co. ante, 80) a provision of the Statute of Limitations permitting the bringing of a new action within a certain time after the failure, otherwise than on the merits, of a prior suit begun in due time, is held to be applicable to a limitation period in a fire insurance policy, which period is considered by the court as a statutory limitation, the case of Hamilton v. Royal Ins. Co. (N. Y.) supra, being made the basis of the decision. In a supplemental opinion in (1921) Okla. —, ante,

cies had been restrained by injunction. It was held that § 105 of the old Code (new Code, § 406), which saved the rights of parties stayed by injunction, had no application to this case, where the limitation was prescribed by the parties, but applied only to cases governed by the limitations in the general law.

In Holly v. London Assur. Co. (1915) 170 N. C. 4, 86 S. E. 694, the limitation period in an insurance policy was said by the court to be a contractual limitation, although it seems to have been included in a regular standard policy authorized by the statutes of the state.

b. Minority rule.

Michigan is apparently the only jurisdiction which has held directly that saving provisions of the Statute of Limitations, in case of the failure of a suit brought in due time, do not

apply to the special statutory limitations provided for standard fire insurance policies. In Dahrooge v. Rochester German Ins. Co. (1913) 177 Mich. 442, 48 L.R.A. (N.S.) 906, 143 N. W. 608, the limitation period involved was part of the standard form of insurance policy required by law. Act No. 277, Pub. Acts 1905, 3 How. Stat. 2d ed. § 8328. Two prior actions having been commenced, in due time, on the failure thereof the suit in question was instituted after the expiration of the limitation period specified, it being contended, however, that it was saved from the operation thereof by an act (§ 9738, 3 Comp. Laws, 5 How. Stat. 2d ed. § 14,145) providing that suit might be commenced one year after the abatement of an original suit properly begun. It was held that this section did not apply to the special Statute of Limitations relative to fire insurance policies. R. S.

Burglary -breaking

ment.

2. Where one is convicted upon an indictment charging him with breaking and entering the dwelling house of another with intent to commit a felony, to wit, the larceny of property of more than the value of $20, and the court finds that the defendant is a suitable person to be committed, under the statute, to the Florida Industrial School for Boys, and, in the order committing the defendant, recites that he was charged with breaking and entering with intent to comHeadnotes by ELLIS, J.

mit a misdemeanor, the error in describing the offense in such order does not invalidate the judgment and sentence, but the judgment will be reversed, with directions to amend the commitment in so far as to make it speak the truth as to the nature of the offense charged.

ring guilt on the part of the person in possession, in the absence of a satisfactory explanation of such possession of the stolen goods by him.

[See 4 R. C. L. 440; 17 R. C. L.

71; 1 R. C. L. Supp. 1140; 3 R. C. L. Supp. 637.] -sufficiency.

4. Evidence examined, and found sufficient to support the verdict.

error.

Messrs. Rivers Buford, Attorney General, and J. B. Gaines, Assistant Attorney General, for the State:

Pushing open a door entirely closed is a sufficient breaking to sustain a conviction on a charge of breaking and entering a dwelling house with intent to commit a felony.

May v. State, 40 Fla. 426, 24 So. 498; Jackson v. State, 49 Fla. 3, 38 So. 599; Collier v. State, 55 Fla. 7, 45 So. 752; Miller v. State, 76 Fla. 518, 80 So. 314; Roberson v. State, 40 Fla. 509, 24 So. 474.

Ellis, J., delivered the opinion of the court:

The plaintiff in error was convicted in the circuit court for La Fayette county upon an indictment charging him with breaking and entering the dwelling house of another with intent to commit a felony, the larceny of property of more than the value of $20. The court, finding that the defendant was a suitable person to be committed to the Florida Industrial School for Boys, committed him to that institution for four years. In the order it was recited that the alternative sentence was three years in the state prison at hard labor; that the defendant was charged with breaking and entering with intent to commit a misdemeanor. The error in describing the character of offense charged as being a breaking and entering with intent to commit a misdemeanor, instead of a felony, does not invalidate the judgIment and sentence.

Appeal-effect of error in commitment.

The punishment prescribed for the offense of breaking and entering with intent to commit a misdemeanor is a period of imprisonment in

Sen

the state prison not exceeding five years. The offense charged in the indictment was more serious. tence to a term in the Industrial School in either case, where the defendant is under the age of eighteen years, is authorized under § 6318, Revised General Statutes 1920. The form of the commitment in this case followed the form prescribed by § 6320, Revised General Statutes.

T. A. Townsend was a witness for the state. He testified that the house entered was his his dwelling house; that the house was entered during his absence; some clothing consisting of shoes, trousers, shirt, tie, and other articles, amounting in value to about $45, were stolen; a few days after the theft he met the defendant, who was wearing some of the articles, shoes, socks, and sock supporters. The defendant, when confronted by the witness and asked where he got the shoes and socks, admitted that some of the other articles, the trousers, shirt, tie, etc., were in his trunk at home, and he told two stories as to how he acquired them. In one story he said that he bought them from a Jew at Branford; a little while later he said that he was plowing in a field and saw a boy crossing the field at a corner, and who stopped near a stump; later the defendant went there to investigate, found the clothes, and appropriated them; that the boy whom he saw was named Julius Cribbs.

The witness also testified that, discovering that his house had been entered and the clothing stolen, he tracked the defendant to the place where he lived. The track which the witness followed was made by the shoes which had been stolen

from his house. On cross-examination the defendant's counsel developed the following fact: The witness left his house during the morning, and returned late in the evening; the door to the house was not locked; it was "pulled to and latched." There were no broken doors or windows; there "was absolutely no break whatever." That the witness did not see anyone enter the house, and did not know who did the breaking; he merely caught the defendant "with the clothes on." Defendant's counsel then asked the witness the following question: "Whoever entered the house did it without breaking?" Objection by the state attorney to this question was sustained, and the ruling is assigned as the first error.

There was no error in the ruling. The cross-examination had shown that the entry was effected through the door. It was closed and latched by a common knob lock. The latch had to be turned or lifted to open the door. The clothes were taken Tuesday; the witness missed them Saturday following, about the 28th day of May, 1921; he found the defendant in possession of them on June 12th following.

Burglarybreaking-push

The pushing open a door entirely closed is a sufficient breaking to sustain a conviction for breaking and entering a dwelling house with intent to ing open door. commit a felony. See May v. State, 40 Fla. 426, 24 So. 498; Roberson v. State, 40 Fla. 509, 24 So. 474; Thompson v. State, 58 Fla. 106, 50 So. 507, 19 Ann. Cas. 116. The question sought the witness's opinion as to whether such an entrance constituted a breaking in law. Such opinion was inadmissible; besides, the witness was permitted to testify that neither the windows nor doors of the house were broken in fact, nor were any planks ripped from the building.

Objection was made to an alleged

The fourth assignment of error questions the sufficiency of the evidence to support the verdict. A discussion of the evidence in detail would be of no service. It consisted principally in the circumstances of finding the defendant in possession of the stolen property, and the explanations he gave as to that possession, which the jury did not believe. The question of veracity between him and Julius Cribbs was decided by the jury in favor of the latter. The evidence was ample to warrant the conclusion that the entrance was effected by opening a door that was latched, which in law constitutes breaking.

-sufficiency.

The judgment is reversed, with directions to amend the commitment in so far as to make it speak the truth as to the nature of the offense charged.

Browne, Ch. J., and Taylor, Whitfield, and West, JJ., concur.