Carroll v. Union Marine Ins. Co., 14628.

• Court: Court of Appeal of Missouri (US)
• Citation: 249 S.W. 691
• Docket Number: No. 14628.,14628.
• Parties: CARROLL v. UNION MARINE INS. CO. LIMITED, OF LIVERPOOL.
• Decision Date: 02 April 1923

249 S.W. 691 CARROLL
v.
UNION MARINE INS. CO. LIMITED, OF LIVERPOOL. No. 14628. Kansas City Court of Appeals, Missouri. April 2, 1923.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

"Not to be officially published."

Action by John J. Carroll against the Union Marine Insurance Company, Limited, of Liverpool. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Marcy K. Brown, Jr., of Kansas City, for appellant.

H. E. Colvin, of Kansas City, for respondent.

TRIMBLE, P. J.

This is a suit on a policy of insurance against theft, issued by defendant on plaintiff's automobile. During the life of the policy the vehicle was stolen. Plaintiff verbally notified the company of the loss, and the adjuster came to investigate and told plaintiff that, although there appeared to be a mistake in the policy, yet the insurance would be paid. The adjuster's report was sent in to the company, but after considerable delay plaintiff was notified that the company denied liability on the ground that there was not maintained on said automobile a "defender lock." The automobile was stolen on August 17, 1920, the loss was reported the next day,, and very shortly thereafter the facts were ascertained. After liability was finally denied, suit was brought on the policy on November 20, 1920, and thereafter, on January 25, 1921, the defendant, for the first time, tendered back the premium it had received and held during the entire time elapsing after notice of the loss.

The policy described the automobile as being a new Ford, model of 1920, list price $585, actually costing plaintiff, with equipment, $700. The defenses were that these matters were untrue, and therefore the policy was void; also that there was a provision in the policy rendering it void if a locking device known as the "defender lock" was not maintained and used thereon; and that proof of loss was not furnished.

The facts are that, instead of the car being new (that is, bought by plaintiff himself direct from the dealer), plaintiff had bought it for $565 of one Poe, who had used it for a short time. Whether it was or was not a model of 1920 is not disclosed in the evidence, and as defendant did not submit this question in its instruction, of course, this was abandoned. Furthermore, there was not, and never had been, a defender lock maintained on the car. Indeed, the automobile in question was one which had a self-starter; and it is conceded that it is impossible to put a defender lock upon a Ford automobile having a self-starter.

The information as to the car being a new one, model of 1920, and that it had a defender lock thereon, was furnished to defendant's local agents, Long & Stowell, having

249 S.W. 692

authority to write and issue policies and collect he premiums, by one Hudson, a tire salesman, who, as a side Line of business, solicited insurance for Long & Stowell, who paid him a part of the commission received on the insurance he obtained for them. Mr. Long of Long & Stowell, who was defendant's witness, admitted that Hudson was thus compensated for the insurance he thus obtained for them, and that he was paid a part of the commission taken out of the premium paid by plaintiff on the policy in controversy. He also admitted that the information relative to the car and inserted in the policy was obtained by his firm from Hudson, who furnished it to them, and from which they wrote the policy.

The evidence shows that Hudson solicited the insurance of plaintiff; that the latter made no representations to Hudson whatever about the car, but the...