Bushong v. Security Insurance Company of New Haven, Conn.

• Decision Date: 18 June 1923
• Citation: 253 S.W. 175,214 Mo.App. 462
• Parties: J. C. BUSHONG, Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, CONN., Respondent
• Court: Kansas Court of Appeals

253 S.W. 175

214 Mo.App. 462

J. C. BUSHONG, Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, CONN., Respondent

Court of Appeals of Missouri, Kansas City

June 18, 1923

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.

Judgment affirmed.

Ed. E Aleshire and S. F. Handy for appellant.

Crow & Newman for respondent.

OPINION

ARNOLD, J.

--This is a suit to recover upon an insurance policy issued by defendant to plaintiff upon a Haynes automobile, covering fire and theft in the sum of $ 1500. The policy was issued December 27, 1920, for a period of one year from date, at a fixed premium of forty-eight dollars, which plaintiff paid.

On or about April 25, 1921, the car was destroyed by fire and in due time plaintiff filed proof of loss as required by the contract. A short time after proof of loss was filed, defendant refused to pay the claim on the grounds that the car was a 1916 model, instead of a 1918 model, as represented in the application for the insurance. This suit followed in due course and was tried in the Independence Division of the Circuit Court of Jackson County. Trial was to a jury and at the close of all the evidence, defendant asked, and the court signified its intention to give, an instruction in the nature of a demurrer, but before such instruction was read to the jury, plaintiff took an involuntary nonsuit, with leave to move to set the same aside. In due time plaintiff moved to set aside the nonsuit and asked for a new trial, which motion was overruled. From this ruling, plaintiff appeals, and this action of the trial court is the only question before us on this appeal.

Plaintiff, as a part of his case, offered in evidence the policy sued on. Said policy shows that the original premium for the fire risk was $ 25.50 and for theft $ 22.50, making a total of $ 48. The following appears in the policy:

"Warranties: The following statements of fact known to and warranted by the assured to be true, and this policy is issued by the company relying upon the truth thereof. Assured's occupation or business is real estate. The following is the description of the automobile: Model year: 1918. Trade name: Haynes. Type of body: Touring. Factory: 15433. List price $ 2150. Advertised horse power: 55. Number of cylinders: 6."

The facts with respect to the purchase of the automobile described were given as follows:

"Purchased by the assured December, 1920 (second hand.) Actual cost to assured including equipment: $ 1,750. The automobile described is fully paid for by the assured and is not mortgaged or otherwise encumbered, except as follows: No exceptions.

"The uses to which the automobile described is and will be put, are: Pleasure and business calls. The automobile described is usually kept in a public garage, located at 3233 Troost avenue, Kansas City, Missouri."

The number of the policy is given as 19186, issued at Kansas City, by F. A. Dickson, Insurance Agency. The policy was received and retained by the insured and was attached to the petition herein as an exhibit. The petition charges the material facts as stated above, including an allegation of total loss of the car by fire, and prays a judgment against defendant in the sum of $ 1500.

The answer is a general denial, and as special answer denies ownership of the car in plaintiff, and charges that at the time the policy was issued, plaintiff falsely represented to defendant that the car was a 1918 model, when in truth and in fact it was a 1916 model; that said false representation was material to the risk in this, that had defendant known that the automobile described in plaintiff's petition was a 1916 model, no policy would have been issued thereon, and that if a policy had been issued on said 1916 model, the premium charge would have been greatly in excess of the amount paid; that by reason of said misrepresentations, the policy so issued was void and is of no effect; that defendant tenders into court the sum of $ 25.50, the amount received by defendant as premium on said policy.

The reply was a general denial. The record discloses that preliminary to the issuance of the policy included in this suit, plaintiff called the office of the issuing agency by telephone and talked to a Miss Pierson who was in charge. The testimony of the parties is conflicting as to just what that conversation was. Plaintiff testified: "I told her I would like to get some insurance on a Haynes car I had recently purchased. I told her how much I wanted and she asked for the engine number, and I got the bill of sale and gave it to her. She asked me what model it was and I said I don't know, it was traded to me for a nineteen hundred eighteen. I told her the car was at the Linwood Garage at 3233 Troost." Further plaintiff testified:

"Q. How did you come to say that you bought this car as a 1918 car? A. Because it was traded to me that way. Q. How did they trade it to you? A. They said it was a 1918 model. Q. And that is all you knew about it? A. That is all I knew about it. Q. And that is the reason you say you bought it as a 1918 car? A. Yes, sir. Q. And the only...