Andrews v. Bull Dog Auto Fire Ins. Ass'n

• Decision Date: 11 February 1924
• Docket Number: No. 14950.,14950.
• Citation: 258 S.W. 714
• Parties: ANDREWS v. BULL DOG AUTO FIRE INS. ASS'N OF CHICAGO.
• Court: Missouri Court of Appeals

258 S.W. 714

ANDREWS v. BULL DOG AUTO FIRE INS. ASS'N OF CHICAGO.

No. 14950.

Kansas City Court of Appeals. Missouri.

February 11, 1924.

Appeal from Circuit Court, Jackson. County; Nelson E. Johnson, Judge.

"Not to be officially published."

Action by George H. Andrews against the Bull Dog Auto Fire Insurance Association of Chicago. Judgment for plaintiff, and defendant appeals. Reversed and remanded,

Walter W. Calvin and Kimbrell & Wofford, all of Kansas City, for appellant.

Swearingen & Finnell and Musser & Kilian, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff's action is on a policy of automobile insurance against loss by theft and fire. Judgment for the face of the policy ($1,700) was prayed, together with 10 per cent. damages and $250 attorney's fee on account of vexatious refusal to pay. The jury returned a verdict for $1,808.30, the amount of the policy, with interest, but found no vexatious refusal to pay. Judgment being rendered on the verdict, defendant appealed.

The original policy for $1,500 was issued. February 25, 1921, on "Oldsmobile touring car, 1920 model, motor No. 33332." But afterwards, by a rider attached to the policy, and dated March 9, 1921, the insurance under the former policy was canceled, and insurance in the sum of $1,700 was created on insured's "`new' automobile," described as "Oldsmobile motor No. 33332; type of body, touring; No. of cylinders, 8; advertised H. P. 26; year's model, 1920."

The petition declared upon the contract as created by the policy and rider, and was in the usual form, alleging that the automobile on April 2, 1921, was stolen and destroyed by fire, and that defendant took charge of the wreck and disposed of it, but has refused to pay plaintiff his loss.

The defense was false representations, constituting breach of warranties, as follows: (1) That said automobile was not mortgaged, when in fact it was; (2) that the motor number was given as 33332, when insured well knew such was not correct; (3) that the automobile was purchased new in March, 1020, from the Oldsmobile Motor Company, when in fact insured had purchased same secondhand from an individual in February, 1020; (4) that insured had paid $2,300 therefor, when in fact he had paid less than that.

The answer also set up that before defendant had learned the true facts it took possession of what was thought to he the salvage and wreck of the car, and sold it for what it was worth, but upon learning the facts it had tendered to plaintiff the amount the salvage had brought, together with the full amount of premium received.

The reply consisted of a general and a specific denial of the matters alleged in defense of the action. The reply also alleged that insured told defendant's agent the facts as they existed at the time.

There is no question but that the written application, dated February 25, 1921, signed by insured, and on which the original policy was issued, stated that the automobile was a model of 1920, purchased of the Oldsmobile Company in March, 1920, at the price of $2,300, and that it was not a secondhand car, and was not mortgaged.

It is also conceded that plaintiff did not purchase the car new in March, 1920, of the Oldsmobile Company, but he bought it on February 24, 1920, of James Lo Bello, who was acting for a man by the name of Van Horn, who owned the car; that the purchase price paid for the car was not $2,300 but $1,850, of which amount $250 was paid in cash, and the balance represented by what seems to be an installment note, payable in installments of $50 each month for a year, and then the whole of the balance of said note became due, the whole secured by chattel mortgage.

To meet the above situation, plaintiff testified in substance as follows: That when he bought the car, the insurance Van Horn had on the car was assigned to him, but it was about to run out, and, friend having recommended the defendant as a good company, and plaintiff had found other insurance companies "pretty high," he called up Robinson, defendant's manager, over the telephone, and told him the insurance he had would run out that day, February 24, 1921; that Robinson told him, "That's all right, come in tomorrow, and I will make out the policy. You are covered from now on;" that the next day he went to Robinson's office, and the latter asked him questions, which he answered, while Robinson filled out the application, which he (plaintiff) signed without reading.

Plaintiff further testified that Robinson asked him the type of the automobile, and he told Robinson it was a 20 model, seven-passenger, eight-cylinder Oldsmobile; that his recollection was Robinson asked him where he bought it, and he told Robinson he bought it from Lo Bello; that Robinson asked him what he paid for it, and he told Robinson he paid $1,850; that Robinson asked him if the car was mortgaged, and he told him it was, but that he had arranged to take it up.

Plaintiff testified that in answering the questions put to him by Robinson when the latter wrote up the application, he, plaintiff, eat on the opposite side of the table, across which he could see Robinson filling out the application, but he could not see what he wrote, nor did he read the application, relying on him to write it properly; that afterwards the policy was issued and delivered to him, and he put same if his desk without reading it; that later he lost some "accessories," and, having purchased a number of these, he went to see Robinson, and learned from him that his policy did not cover accessories; that Robinson asked him why he wanted more insurance, and he told Robinson he had purchased a number of accessories for the car and if his policy did not cover them he wanted one that did; that at Robinson's suggestion he, plaintiff, wrote to the home office of the company, and it replied, saying the car could carry only $1,500 insurance, but if its condition was such that more coverage should be granted, the company would be glad to hear from him further. While the record is not as explicit as it might be on the matter now to be stated, yet it would seem from what does appear therein that plaintiff, or some one, noted on the bottom of this letter the various accessories he had purchased and their prices, all under the heading "The following are the reasons why I should have $1,700 ins." This was apparently sent to the home office, and afterward it issued and sent the above-mentioned rider dated March 9, 1921, wherein it was recited that the company "hereby consents that the policy of George H. Andrews of Kansas City, Mo., shall be canceled and changed from his automobile previously insured under policy No. 21675-2, to his `new' automobile described below, and car. Coverage on same starts from the date named herein; trade-name, Oldsmobile; motor No. 33332; type of body, touring; No. of cylinders, 8; advertised H. P. 26; year's model, 1920." The insurance was fixed in the rider at $1,700, both for fire and theft.

Plaintiff testified that upon receiving the rider and noticing that it referred to a "new" automobile, he went to Robinson and asked him about it, and Robinson replied: "That's all right, that's their way of increasing them; you attach that to your policy; that covers the accessories you have insured."

The evidence of plaintiff, and of a friend who was with him, is to the effect that on Saturday evening, April 2, 1921, they parked the car on the street in Kansas City, and attended a theater, but when they came out the car was nowhere to be found, having disappeared.

An officer of...