83 Fla. 325 | Fla. | 1922
This suit was brought by plaintiff as representative of the deceased mortgagee to recover from defendant, a fire insurance company, the amount of a policy of insurance issued by it covering a dwelling house in the City of Tampa. Under a standai'd mortgage clause attached by the insurer to the policy loss, if any sustained thereunder, was made payable to the deceased mortgagee The amount of the indebtedness secured by the mortgage upon the building and land upon which it was situated was in excess of $2,000. The policy, a New York standard form, was for $2,000. The building insured was subsequently destroyed by fire, the loss being total. At the time of its destruction title to the property rested in Dalsedia Ross, the mortgagor.
The declaration, which is in substantially the statutory form, alleges the issuance of the policy sued on for the consideration stated to the then owner of the property, insuring him against loss by fire to the amount of $2,000 for
By one of the latter pleas it is averred that on or before the date of the alleged loss there was other insurance issued to'and held by the owner of the property to the amount of $1,325, and so it is that the defendant is not liable because of the policy of insurance sued upon in any sum in excess of 2000/3325 of $2,000, the amount of the policy.
By the other it is averred that defendant is liable to plaintiff only by virtue of the “mortgage clause” of said policy which provides among other things that “ in case of any other insurance upon the within described property, this’ company shall not be liable under this policy for a greater proportion of any loss or damage sustained than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee or otherwise;” that there was other insurance upon ¿hid property issued to and held by a party having an’ insurable interest therein, namely, the said owher; that said other insurance was in the sum of $.1,325; that the insurable value of the building was fixed in the eohtract sued on at $2,000, and therefore the loss or damage to said building sustained by reason of the fire did not exceed $2,000 and defendant is not liable under said contract for any sum in excess of 2000/3325 of $2,000, the amount of the policy sued on.
Plaintiff filed replication to these pleas which was demurred to by defendant. Upon .a hearing this demurrer was sustained. Plaintiff thereupon refused to plead further and judgment was entered by the court in favor of plaintiff and against defendant but for an amount less than
By assignments of error two closely related questions are raised, both of which are argued and insisted upon in the brief filed in behalf of plaintiff.
The first presents the question of the effect of the valued policy statute in its application to the facts of this case. With respect to this question it is contended generally that notwithstanding the policy provisions fixing the insurable value of the building destroyed at $2,000, permitting 'no concurrent insurance and providing that the insurer ‘!shall not be liable under this policy for a greater proportion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property issued to or held by any party or parties having an insurable interest therein,” still, under the provisions of the valued policy statute of this state (Sections 4281, 4282, 2728, Revised General Statutes of Florida) and the facts as shown by the pleadings, the insurer was liable in the full amount of its policy and the judgment entered against it in plaintiff’s favor for less than this amount is error. This statute has been held by this court (Hartford Fire Ins. Co. v. Redding, 47 Fla. 228, 37 South. Rep. 62; L’Engle v. Scottish Union & National Fire Ins. Co., 48 Fla. 82, 37 South. Rep. 462) to be valid. This being true, any provisions of the policy under consideration in conflict with the statute are devitalized by it.
The theory of plaintiff upon this branch of the case-is. that where several concurrent policies are written upon real estate the aggregate amount of all such policies is the value of the property insured, notwithstanding clauses in such policies inconsistent with the provisions of the statute.'
The second question is whether under the circumstances shown by the pleadings to exist plaintiff was entitled to recover the full amount of the policy sued on or only the proportion that this policy bore to the whole amount of insurance upon the building at the time of its destruction.
, We have said that the insured in whose behalf plaintiff sues is a mortgagee of the premises and building covered by the policy which was destroyed by fire and that he was indemnified against the loss of his security by a standard mortgage clause attached to the policy, by the terms of which loss, if any thereunder, was payable to him as a mortgagee.
The contract between an insurer of real estate and a mortgagee of the insured premises under the standard mortgage clause, is independent of the principal contract
By the mortgage clause, which of course must be conceded to be the basis of plaintiff’s claim and in the absence of which he would have no standing, it is provided, as averred in the plea, that the insurer shall not be liable under the policy for a greater proportion of any loss sustained thereunder than the amount of such insurance bears to the whole amount of insurance on said property issued to or held by any party or parties having an insurable interest therein, but it is also provided in this clause of the policy that “this insurance, as to the interest of the mortgagee or trustee, only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured.”
The plea does not aver that such additional insurance was obtained with the consent of the deceased mortgagee or with his knowledge. It is clear that the procuring of additional insurance by the owner upon the building without the consent of the mortgagee would be an act of the mortgagor invalidating pro tanto the interest of the mortgagee in the insurance payable to him if the provision limiting the liability of the insured to the proportion of any loss sustained which the amount of its insurance bears to the whole amount of insurance upon the property is applicable. If this provision is to apply, the mortgagor owner by his act of obtaining additional insurance upon the building would diminish proportionately the value of
Why two provisions in apparent conflict should have been ..inserted in this mortgage clause is not clear. It is clear that the language of both cannot be given full force and .effect. Since the insurer selected the language employed, if fhe meaning is obscure it should be liberally construed jn favor of the insured so as not to defeat without plain necessity his indemnity, which in taking the insurance it was his object to secure. National Surety Co. v. Williams, 74 Fla. 446, 77 South. Rep. 212; National Bank v. Insurance Co., 95 U. S. 673; Western Ins. Co. v. Cropper, 32 Penn. St., 351, 355; Reynolds v. Commerce Fire Ins. Co., 47 N. Y. 597, 604; Travellers’ Ins. Co. v. McConkey, 127 U. S. 661, 666; Fowkes v. Manchester & Life Assn. 3 Best & Smith, 917, 925.
This,clause received consideration by the Court of Appeals of New York in the case of Eddy v. London Assurance Corporation, 143 N. Y. Rep. 311, 38 N. E. Rep. 307, 25 L. R. A. 686, where the court, speaking through Mr. Justice Peekham, said “It is clear that the only object of the mortgagee is to obtain a security upon which he can rely,, and this object is- of course, also plain and clear to the .insurer: .Both .parties proceed to enter into a con
‘‘We must strive to give effect to all the provisions of the contract and to enforce the actual meaning of the parties to it as evidenced by all the language used within the four corners of the instrument. We are also at liberty to consider the purpose for which the contract was executed, where that purpose plainly and necessarily appears from a perusal of the whole paper. That construction will be adopted, in the case of somewhat inconsistent provisions, which, while giving some effect to all of them, will at the same time plainly tend to carry out the clear purpose of the agreement; that purpose which it is obvious all the
Besides, while the insurer in this case is a foreign company, its branch office in this country is in New York City. It was therefore no doubt familiar with the construction placed upon this clause of its policy by the New York courts before issuing the policy sued on in Florida. This being true, it will, we assume, hardly be disposed to complain of a construction of its contract adopted here from the jurisdiction of its domicile in this country.
From what has been said it follows that inasmuch as defendant’s fourth jilea fails to aver that the additional insurance issued upon the owner’s interest in the property was consented to by the deceased mortgagee or was with his knowledge, it set up no defense to his action and should have been overruled. The order sustaining this demurrer to this plea was error for which the judgment must be reversed.
Reversed.