Hartford Fire Ins. Co. v. Brown

• Decision Date: 06 December 1910
• Citation: 53 So. 838,60 Fla. 83
• Parties: HARTFORD FIRE INS. CO. v. BROWN.
• Court: Florida Supreme Court

53 So. 838

60 Fla. 83

HARTFORD FIRE INS. CO. v. BROWN.

Florida Supreme Court, Division A.

December 6, 1910

Error to Circuit Court, Jackson County; J. Emmet Wolfe, Judge.

Action by J. W. Brown, for the use of the Central State Bank against the Harford Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The acts of an agent performed within the scope of his real or apparent authority are binding upon his principal. The public have a right to rely upon an agent's apparent authority and are not bound to inquire as to his special powers, unless the circumstances are such as to put them upon inquiry.

The clause in the fire insurance policy placing a limitation upon the power of any officer, agent, or other representative of the insurance company as to the manner of waiver of any provision or condition in the policy may itself be waived. An insurance company cannot make its local agent the medium through which all the benefits of a policy flow from the insured to it, and then deny that he has authority to represent it when the benefits of the insured are involved.

In determining the correctness of charges and instructions, they should be considered as a whole, and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail.

During the course of the trial of an action, where the court ruled that the burden of proof upon a certain point was upon the defendant, no harm could have ensued to the defendant from such ruling, even if erroneous, when as a matter of fact the plaintiff actually assumed such burden and met it.

Assignments of error predicated upon alleged facts and rulings that are not disclosed by the record cannot be considered by an appellate court.

No error is committed by the trial court in refusing to permit a witness on his cross-examination to answer a question which is not in cross of any matters elicited on the direct examination, and when the answer thereto, whichever way it might be, would not tend to prove the issues as made by the pleadings.

The amendment of pleadings during the trial of an action is a matter resting within the sound judicial discretion of the trial judge, and an appellate court will not interfere with the exercise of such discretion, whether in the granting or refusal of the same, unless a plain abuse of such discretion is shown.

COUNSEL Paul Carter and Wm. B. Farley, for plaintiff in error.

Price &amp Watson, for defendant in error.

OPINION

SHACKLEFORD J.

We are called upon to review a judgment which the plaintiff in the court below recovered against the defendant upon a fire insurance policy. The declaration substantially follows the statutory form in such actions, and such original policy is attached to and made a part thereof. This policy insured the plaintiff for the term of one year from the 14th day of April, 1909, against all direct loss or damage by fire, except as therein provided, to an amount not exceeding $1,000, to certain described property therein, consisting of hotel furniture and other goods and chattels. The defendant filed two pleas. In the first it was denied that all the conditions of the policy had been performed and fulfilled, so as to make the defendant liable and entitle the plaintiff to maintain an action thereon; it being specifically averred that the plaintiff, although required by the stipulations and covenants in the policy so to do, 'did not give any immediate notice of any loss by fire in writing to this defendant, and did not further separate the damaged from the undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and did not within 60 days after said fire render statement to this defendant signed and sworn to by said plaintiff or the insured as he is called in said policy, stating to the knowledge and belief of said insured, and to the time and origin of the fire, the interest of the insured and all others in the property, the cash value of each item thereof, and the amount of loss thereon, all incumbrances thereon, all other insurance whether valid or not, covering any of said property, and a copy of all descriptions and schedules in all policies and change in title, use, occupation, and location and possession or exposure of said property since the issuing of said policy, by whom and for what purpose any building therein described, and the several parts thereof were occupied at the time of the fire. The defendants aver that by reason of the premises that said plaintiff is barred from bringing or maintaining this action on said contract on the policy.'

The second plea was as follows:

'(2) And for the second plea the defendants say 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 defendants further aver 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, the said plaintiff had incumbered said property by executing a chattel mortgage on same to First National Bank of Graceville, Fla., January 30, 1907, and another chattel mortgage to First National Bank of Graceville, Fla., executed September 15, 1908, and that said chattel mortgage was in full force, not paid, satisfied, or canceled at the time of 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 is alleged.'

To these pleas the plaintiff filed the following replications:

'Now comes the plaintiff in the above styled and entitled cause, and for replication to the first plea of the defendant on file herein says:

'That it is true that the said policy of insurance sued upon contains the covenants, stipulations, and agreements set forth and contained in said plea; but the plaintiff avers that the said defendant waived the requirements on the part of this defendant contracted to be performed and done by him as stipulated and set forth in said plea by unconditionally denying, prior to the institution of this suit, any liability under the policy of insurance herein sued upon.

'And for first replication to the second plea of the defendant herein the plaintiff says:

'That it is true that prior to the execution and delivery of the policy of insurance to the plaintiff by the defendant company plaintiff had executed and delivered to the First National Bank of Graceville, Fla., the two certain mortgages mentioned and described in the said second plea, but plaintiff avers that, prior to effecting said insurance, each of said mortgages had been fully paid off and discharged, and that at the time of the taking out of the policy of insurance said mortgages were not a valid and subsisting lien against the property described in said policy of insurance, and thereby insured. Neither were said mortgages at any time thereafter a valid and subsisting lien upon said property so covered by the policy of insurance aforesaid.

'And, for second replication to the said second plea, plaintiff says:

'That the defendant at the time of effecting said insurance informed the plaintiff that it was not necessary to state whether or not the property insured by the said policy was incumbered by mortgage, mortgages, or other liens, and further stated that, even though the same was covered by mortgages or liens, such fact would not affect the insurance upon the property so insured, and that said defendant would write said policy upon the payment of the premium mentioned and set forth in the policy of insurance.

'Plaintiff further avers that he started to inform the defendant the condition of said property sought to be insured as to incumbrances, but the said defendant informed the plaintiff that it made no difference and that he did not care to know anything about incumbrances or liens thereon, if any; that plaintiff relied upon the representations of the defendant and at his request paid it the sum of $36.50 on said policy of insurance, and accepted the same from the said defendant; that the defendant accepted the said money for said insurance upon the terms and agreements herein alleged and issued the said policy herein sued upon.

'Wherefore plaintiff alleges that the defendant is estopped from denying liability under said policy contract sued upon by reason of the existence of any mortgage or lien upon said property which existed at the time of the execution and delivery of said contract of insurance.'

The defendant interposed a demurrer to the second replication upon the following ground: 'Said replication sets up no matter of reply to defendant's plea. The policy itself sued upon shows stipulations in substance and to the effect that no agent or officer had authority to modify or change the stipulations therein contained unless indorsed upon policy. Said replication does not contain any statement that the waiver set up was indorsed on said policy or added thereto.'

This demurrer was overruled, whereupon the defendant joined issue upon the replications, and the case came on for trial before a jury, which resulted in a verdict and judgment in favor of the...