Georgia Home Ins. Co. v. Hoskins

• Citation: 71 Fla. 282,71 So. 285
• Parties: GEORGIA HOME INS. CO. v. HOSKINS.
• Decision Date: 01 March 1916
• Court: United States State Supreme Court of Florida

71 So. 285

71 Fla. 282

GEORGIA HOME INS. CO. v. HOSKINS.

Florida Supreme Court

March 1, 1916

Error to Circuit Court, Jackson County; D. J. Jones, Judge.

Action by W. H. Hoskins against the Georgia Home Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

All parties litigant who are sui juris, including insurance companies and persons having property insured, as well as others, in the eyes of the law, before the court, stand upon an equal footing, entitled to equal rights and protection and none to special privileges. All parties are free to make whatever contracts they please, so long as no fraud or deception is practiced and the contract is legal in all respects.

Where a party voluntarily accepts a fire insurance policy from an insurance company, no fraud or deception being practiced, in an action brought upon such policy the insurance company may base its defense to such action upon the failure of the insured to comply with any of the provisions of such policy provided the same are lawful.

Where a person voluntarily accepts a fire insurance policy from an insurance company, no fraud or deception being practiced containing the following provision: 'This entire policy unless otherwise provided by agreement and indorsed hereon or added hereto, shall be void * * * if the subject of insurance be personal property and be or become incumbered by a chattel mortgage'--when there is no element of waiver or estoppel arising from knowledge of the company or its agent, the execution of a chattel mortgage upon the property insured renders the policy void and constitutes a good defense to an action brought thereon. The insured is bound by the terms of the policy which he accepts, and the fact that no inquiries were made by the company or its agent, and no representations were made by the insured in a written application or otherwise, cannot strike out such provision in the policy. Likewise the incumbering of the insured property by the execution of a chattel mortgage thereon subsequent to the issuance of an insurance policy constitutes a good defense to an action brought thereon.

No particular form of words is necessary to constitute a chattel mortgage. If, without regard to form, the instrument is in legal effect a chattel mortgage, it will void a fire insurance policy which contains a provision to the effect that, if the insured personal property is or becomes incumbered by a chattel mortgage, the policy shall be void.

As to whether or not a written instrument is in legal effect a chattel mortgage is a question of law to be determined by the court, and it is error to submit such question to the jury.

Where a written instrument has been introduced in evidence, it is error to admit the testimony of one of the parties who executed such instrument as to what he and the other party who executed the same intended thereby, especially when this court has construed an instrument practically identical with the instrument introduced in evidence and announced its character and legal effect.

COUNSEL Wm. B. Farley, of Marianna, for plaintiff in error.

John H. Carter and Will H. Price, both of Marianna, for defendant in error.

OPINION

SHACKLEFORD J.

On the 7th day of March, 1910, W. H. Hoskins instituted an action at law against the Georgia Home Insurance Company, a corporation, upon a fire insurance policy. The declaration substantially follows the statutory form in such cases; a copy of the policy being attached thereto. The policy is dated the 5th day of August, 1909, to cover for one year the household and kitchen furniture of W. H. Hoskins to the amount of $500, which property is alleged to have been destroyed by fire on the --- day of October, 1909. On the 2d day of May, 1910, the defendant filed the following pleas:

'(1) That the alleged contract sued upon called a policy contains a provision and stipulation in substance and to the effect as follows: This entire policy, unless otherwise provided for by an agreement indorsed thereon or added thereto, shall be void if the subject of insurance be personal property and be or become incumbered by a chattel mortgage. And defendant further avers that the subject of insurance covered by said policy was personal property, and there never was any agreement indorsed thereon or added to said policy permitting or otherwise providing the said property had been or might become incumbered by a chattel mortgage, but that in violation of said stipulation and provision the said plaintiff had incumbered said property by executing a chattel mortgage on same to H. V. Maund, dated the 1st day of February, 1909, and another chattel mortgage to H. V. Maund, executed October 16, 1909, and that said first chattel mortgage was in full force, not paid, satisfied, or canceled at the time of the execution by defendant of the policy sued upon and at the time of said alleged loss of the property by fire as in the declaration alleged, and that the second of said mortgages was executed after the time of the execution of the policy sued on, and was in full force, not paid, satisfied, or canceled at the time of said alleged loss of the property by fire as in the declaration alleged.

'(2) And for second plea defendant says that the alleged contract sued upon called a policy contains a provision and stipulation in substance and to the effect as follows: This entire policy, unless otherwise provided for by agreement indorsed thereon or added thereto, shall be void, if the subject of insurance be personal property and be or become incumbered by a chattel mortgage. And defendant further avers that the subject of insurance covered by said policy was personal property, and that there never was any agreement indorsed thereon or added to said policy permitting or otherwise providing the said property had been or might become incumbered by a chattel mortgage, but that in violation of said stipulation and provision, after the issuance of said policy and its delivery and acceptance, the said plaintiff did mortgage the property the subject of the said insurance to one H. V. Maund by executing to said H. V. Maund a chattel mortgage upon said property dated October 16, 1909, for $102.50, due October 1, 1910, which incumbrance and mortgage was in full force, not paid, satisfied, or canceled at the time of the said alleged loss of the property by fire as in the declaration is alleged.

'(3) And for the third plea the defendant says: That, contrary to the stipulations and conditions of the policy of insurance sued upon, the plaintiff had on the 1st day of February, 1909, incumbered the said property described in said policy of insurance with a chattel mortgage executed by plaintiff to one H. V. Maund, and after the execution and delivery of said policy the plaintiff further violated the said stipulations and provisions of said policy by again incumbering said personal property so insured by another chattel mortgage of said H. V. Maund executed on the 16th day of October, 1909, which mortgages were and continued in force and unpaid, uncanceled, and unsatisfied from their execution until after the alleged loss by fire set up in plaintiff's declaration; and of said mortgages defendant had no notice, and no agreement permitting or otherwise providing for such incumbrance of such property was ever indorsed upon said policy, nor was such incumbrance ever consented to or acquiesced in by the defendant.

'(4) And for a fourth plea the defendant says: That at the time said policy of insurance was executed and delivered the plaintiff had already incumbered said property the subject-matter of the insurance by a chattel mortgage of which the defendant knew nothing, contrary to the stipulations in said policy contained, which chattel mortgage was then and there a valid existing lien and incumbrance upon the personal property described in said policy of insurance, and was not consented by the defendant in writing or otherwise, the lien and chattel mortgage being a chattel mortgage to one H. V. Maund upon all the personal property of plaintiff, including his household and kitchen furniture of every kind and character in Jackson county, Fla., and thereby the said policy became void and of none effect under the stipulations of said policy set up in plaintiff's declaration.

'All of which matters and things this defendant is ready to verify and prove, and of this it put itself upon the country.'

A replication was filed to these pleas, which was subsequently withdrawn by the agreement of counsel, and the following replications filed on the 21st day of April, 1915:

'Now comes the plaintiff, by his attorneys, and with the consent of defendant, by its attorneys, withdraws the replication heretofore filed to defendant's pleas herein, and for replication to said pleas, says:

'(1) That he did not make the instruments mentioned in said pleas, nor either of them.

'(2) That he never executed a chattel mortgage upon the property insured either before said policy was issued or afterwards.

'(3) That as to the instruments referred to in said pleas the defendant had notice of the one of February 1, 1909, before and at the time said policy was issued and delivered by defendant, and afterwards up to the time of the fire, but neglected to declare said policy void or to return the premium received by it thereon, and neglected to notify plaintiff that the giving of another such instrument would avoid said policy.

'Subject to the foregoing replications, plaintiff joins issue upon said pleas and each of them.'

And on the same date the following additional replications were filed:

'The plaintiff for additional replications to defendant's pleas says:

'For...