Kinchen v. Royal Exchange Assurance of London, England

• Decision Date: 05 May 1931
• Docket Number: 776
• Citation: 134 So. 340,16 La.App. 336
• Court: Court of Appeal of Louisiana — District of US
• Parties: KINCHEN v. ROYAL EXCHANGE ASSURANCE OF LONDON, ENGLAND

134 So. 340

16 La.App. 336

KINCHEN v. ROYAL EXCHANGE ASSURANCE OF LONDON, ENGLAND

No. 776

Court of Appeals of Louisiana, First Circuit

May 5, 1931

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge. Hon. George K. Favrot, Judge.

Action by Daniel C. Kinchen against Royal Exchange Assurance of London, England.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

(See Kinchen v. Royal Exchange Assurance et al., 12 La.App. 8, 124 So. 844; Kinchen v. Royal Exchange Assurance et al., 15 La.App. 301, 131 So. 201.)

Judgment affirmed.

R. W Walker, of Baton Rouge, attorney for plaintiff, appellant.

Hawthorn Stafford & Pitts, of Alexandria, attorneys for defendant appellee.

OPINION

LeBLANC, J.

Plaintiff had insured his household furniture against loss by fire with the defendant insurance company to the amount of $ 800. On July 3, 1926, during the life of the policy under which it was insured, it was totally lost in a fire which destroyed his dwelling house in which it was contained. Upon the defendant's refusal to pay the amount of insurance, he brought suit to collect the full value, plus 12 per cent statutory damages and $ 100 for attorney's fees.

In his petition, plaintiff alleges that a portion of the furniture in his house at the time of the fire had been purchased from the Globe Furniture Company on credit, and that that company held a chattel mortgage on the same to secure the part of the purchase price still due, which chattel mortgage was duly recorded in the chattel mortgage records of the parish of East Baton Rouge. He makes a further allegation, which, although not so worded exactly, we take to mean that he informed the agent of the defendant company at the time the policy was issued of the existence of the chattel mortgage.

The policy, which is of the standard form, provides for its forfeiture, if the subject of insurance be personal property, "and be or become incumbered by a chattel mortgage." In view of the plaintiff's allegation, which was virtually a judicial admission that his furniture was mortgaged in violation of the provisions of the policy, defendant filed an exception of no right or cause of action which was not passed on by the lower court, but was referred to the merits. On trial on the merits, judgment was rendered in favor of the defendant, rejecting the plaintiff's demand at his costs, and he has appealed.

Defendant urges the exception of no right or cause of action again before this court, and contends that plaintiff's allegation of knowledge of the existence of the chattel mortgage on the part of its agent is not sufficient to strip of its effect that further provision in the policy which limits the power and authority of the agents in the matter of waivers and requires that any change in the provisions or conditions of the contract be written upon, or attached to, the policy.

The last provision referred to has been frequently the subject of litigation before the Supreme Court, and invariably it has been given its full effect, unless the facts and circumstances alleged, and usually strong ones, warranted its disregard. In the recent case of Gitz Sash Factory v. Union Insurance Society, however, reported in 160 La. 381, 107 So. 232, 233, in a majority opinion, the Supreme Court, following what is stated to be the weight of authority, held that:

"An insurance company, as a corporation, being able to act only through officers and agents, their acts within...