Affleck v. Potomac Ins. Co.

• Decision Date: 16 February 1928
• Docket Number: No. 6413.,6413.
• Parties: AFFLECK v. POTOMAC INS. CO.
• Court: Rhode Island Supreme Court

140 A. 469

AFFLECK

v. POTOMAC INS. CO.

No. 6413.

Supreme Court of Rhode Island.

Feb. 16, 1928.

Exceptions from Superior Court, Providence and Bristol Counties; Frederick Rueckert, Judge.

Action by Catherine J. Affleck against the Potomac Insurance Company. The trial court granted defendant's motion for a nonsuit, and plaintiff excepts. Exceptions overruled, and case remitted for entry of judgment on the nonsuit.

John P. Beagan and Joseph E. Beagan, both of Providence, for plaintiff.

Cooney & Cooney, of Providence, for defendant.

BARROWS, J. Plaintiff sought to recover upon a fire insurance policy issued to her by defendant, and alleged to cover a "Willys-Six" automobile which was destroyed by fire. The policy is an "automobile policy approved by the national convention of insurance commissioners." The vital question was whether it covered plaintiff's car.

At the close of plaintiffs evidence, the trial court granted the defendant's motion for a nonsuit on the ground that there was a misstatement of the subject-matter of the insurance as to the "kind and model of car, the year when it was bought, the price that was paid for it," and, further, because of "variance between the declaration and proof." On exceptions thereto plaintiff is now before this court. She also claims numerous errors in the admission and rejection of evidence as well as error in refusal to direct a verdict in her favor. The latter motion, if not premature, could not have been granted on the contradictory evidence in plaintiff's own case, and the only ruling on evidence that plausibly can be questioned related to the refusal of the court to permit an automobile dealer to state how important the motor or serial number was in the identification of cars. If error, this was harmless, because we have given her the benefit of an assumption that such number would definitely identify a car of a specific trade-name.

The declaration alleges ownership by plaintiff of a "Willys-Six" automobile having a factory number 777, and motor number 14033. Upon said car it avers that defendant company issued a policy for $1,700 insurance against fire, dated May 17, 1921, and expiring one year therefrom; that the car was destroyed by fire on April 10, 1922; that the amount of the loss was $1,000; and that plaintiff has performed all conditions required of her under the terms of said policy.

Plaintiff filed with defendant company written proof of loss describing the burned car as a "Willys-Six," factory number 777, motor number 14033, having six cylinders, model, 88-6, horse power, 29.4, year model, 1917, and cost $1,377 on February 7, 1917.

Considering the oral evidence in its most favorable aspect to plaintiff, the car destroyed is shown to have been purchased by her husband in 1917. He died in 1918, and ownership of the car passed to her. We will assume, as testified to by general agent Kean, who wrote the policy, that the motor number of the car burned was identical with that of the car described in the policy. Plaintiff's car was known in the trade as a Willys-Overland. She never owned a Willys-Knight, which is a sleeve valve motor of an entirely different type from a Willys-Overland poppet valve, and costs about twice as much. According to plaintiffs testimony, Kean sought her insurance business in 1921, and, without any description of the car or statements concerning its model, cost, or date of purchase, she pointed out to Kean the particular Willys car to be insured. That car was conceded to be a Willys-Overland. Kean, she says, examined it, made some memoranda, and later handed to plaintiff the policy upon which she sued.

The policy offered in evidence by plaintiff describes the car insured as a year 1919 model, 88-8; Willys-Knight touring car, with factory or serial number 14033; motor number (blank); horse power, 65; number of cylinders, 8; list price, $2,750; and further states that the car was bought new by plaintiff in December, 1919, for $2,900. It contains a paragraph concerning "warranties by the assured," stating that the description of the automobile insured and the facts with respect to the purchase of the same as set forth and contained in the policy "are statements of facts known to and warranted by the assured to be true and that the policy is issued by the company relying upon the truth thereof." A subsequent paragraph provides that concealment or misrepresentation of material facts concerning the subject of the insurance shall render the policy void.

In spite of the obvious differences between the car described in the policy and the car burned, plaintiff claims that the policy simply misdescribed the subject-matter insured; that the error was the company's, not hers; and that, without reformation of the policy, there was sufficient identifying description in its words "factory or serial number 14033" to enable the jury, after plaintiff's parol evidence, to identify the car burned as the one described in the policy, and to recover in this action at law on the policy. De Paola v. Humboldt Ins. Co., 38 R. I. 141, 94 A. 700 (misdescription of location of the property insured).

[2-61 It is true that an erroneous description merely of location often will not avoid the policy. The reason is because it does not materially affect the risk, and is not a warranty. Sometimes questions of materiality are for the jury. Lindsey v. Union Mut. F. Ins. Co., 3 R. I. 157. Where, however, the misdescription relates to the nature of the property insured and is beyond dispute material to the risk, the courts refuse recovery on the policy as a matter of law. Such are the following automobile cases: Smith v. Ins. Co., 188 Mo. App. 297, 175 S. W. 113 (model): Harris v. St. Paul, etc., Ins. Co. (Sup.) 126 N. Y. S. 118 (model); Reed v. St. Paul Ins. Co., 165 App. Div. 660, 151 N. Y. S. 274 (model); Simons v. Royal Ins. Co. (Mass.) 154 N. E. 768 (model); Atlante Campagna v. Newark F. Ins. Co. (Mass.) 156 N. E. 54 (cost and date of purchase); Gormley v. Westchester F. Ins. Co., 256 Mass. 221, 152 N. E. 320 (that car was fully paid for). In...