Selph v. Hanover Fire Ins. Co. of New York
| Decision Date | 17 March 1944 |
| Citation | 17 So.2d 220,154 Fla. 287 |
| Parties | SELPH v. HANOVER FIRE INS. CO. OF NEW YORK. |
| Court | Florida Supreme Court |
Rehearing Denied April 5, 1944.
Appeal from Circuit Court, Orange County; Frank A. Smith judge.
Claude L Gray and J. B. Rodgers, Jr., both of Orlando, for appellant.
Akerman Dial & Akerman, of Orlando, for appellee.
At the close of all the testimony introduced in the trial of the action of appellant against appellee to collect on an insurance policy the jury was instructed to return a verdict for the latter the court having entertained the view that such a course was justified because at the time the policy issued (1) ownership of the insured property did not rest in the appellant, (2) liens against it were not accurately disclosed, and (3) the purchase price was exaggerated.
We will attempt to reconstruct the transaction from our understanding of the evidence, stressing in the order we have given them the reasons of the judge for his ruling. A truck and trailer were sold to different persons by a dealer who subsequently repossessed them. At the time of the original sale the retain title contract on the one had been transferred to General Motors Acceptance Corporation; on the other, to First National Bank of Winter Garden. When these vehicles again came into the dealer's hands he sold them to the plaintiff while the interests of these claimants were outstanding. The actual time of consummation of the resale is somewhat confused, but the evidence was not so vague as to warrant the conclusion none of it supported the view that when the policy issued appellant had an insurable interest in the property. It is true the contract of sale signed by him and the dealer was dated July 10, 1941, two days after the policy was executed, but other circumstances refute the contention that until that very time he had no interest. His statement as a witness that he bought the property in May corresponds with the declaration of the date of purchase appearing in the policy.
The testimony of appellant and the dealer are in accord on the promise of the former, as a part of the consideration, to equip the truck with new tires and have the motor overhauled, the vehicle having been abused by the first owners. Appellant did this, and it is a fair inference that meanwhile he had paid the dealer $200 on the purchase price. He had sent the dealer as his representative to arrange for the insurance. He drove the property to a distant state, where it was destroyed July 17, 1941, one week after the policy issued. This does not convey the idea that appellant's interest was incepted after the policy, July 8, 1941; was perfected when his contract with the dealer was signed two days later. It indicates, rather, a negotiation beginning two months before with a delivery of the property, a receipt of part of the purchase price, a fulfillment of the promise to equip and repair. The contract for sale was doubtless executed July 10, 1941, that the transaction might be in concrete form, the paper discounted, the liens consolidated. This will, we think, become more apparent when we treat of the next phase of the litigation relative to the true status of the liens when the insurance contract went into effect. So, on this aspect of the controversy we conclude that there was no occasion for instructing a verdict for appellee.
The appellee maintains that there was such a misstatement about the outstanding liens as to vitiate the insurance contract. It is clear that the dealer, acting as agent for the purchaser, called upon the agent of the insurance company and gave him the data on which the policy was based. The former testified he apprised the agent of the unpaid retain title contracts, on which there was due an aggregate of $1,360, and told him that he intended 'to take the mortgage up at the First National Bank of Winter Garden, and the note with GMAC, * * * and make one note for the whole thing, which would leave it there as a balance of $2,000.00.' This figure, appearing in the policy under the title 'Statements by the Insured' as 'The Amount Unpaid,' was the total of the balance on the retain title contracts and the amount of $640 to be paid the dealer under the contract between him and the plaintiff. In all the circumstances there was no misrepresentation of the status of the liens so material as to justify the avoidance of the contract. In this connection we have not overlooked the provision in the policy that any loss thereunder should be payable 'as interest may appear, to the Insured and General Motors Acceptance Corp.' without mention of the balance due the bank or the seller. It is obvious from the latter's testimony about acquainting the agent of the company with his purpose to consolidate his claim, the claim of the bank, and the claim of General Motors Acceptance Corporation and discount the paper to General Motors Acceptance Corporation that the statement in the policy was made in anticipation of this arrangement.
The third reason given by the trial judge for the instructed verdict, namely, the exaggeration of the purchase price, is a matter of more serious consequence to the appellant.
In the face of the insurance contract under the title, 'Declarations,' subtitle,...
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