Cohen v. Fort Dearborn Casualty Underwriters
| Decision Date | 06 July 1926 |
| Citation | 285 S.W. 1024,221 Mo.App. 741 |
| Parties | H. A. COHEN, RESPONDENT, v. FORT DEARBORN CASUALTY UNDERWRITERS, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.
AFFIRMED.
Judgment affirmed.
A. L Shortridge for respondent.
Wade H Evans and Milton J. Oldham for appellant.
Trimble, P. J., absent.
This is an action to recover upon a policy of automobile fire insurance. Defendant is a corporation duly organized and existing under the law with its principal office at Chicago, Ill., and authorized to do business in Missouri, and is engaged in the business of insuring automobiles against fire, theft, etc.
Plaintiff is a resident of Sedalia, Pettis County, Mo., and is engaged in the business of trucking, in the prosecution of which he owns and operates several trucks. Among others owned by plaintiff was a second hand "International" three-ton truck. On October 12, 1923, defendant, in consideration of $ 16.20 premium, issued its policy of insurance on said truck in the sum of $ 1800, thereby insuring it against loss by fire, theft, etc., for a period of one year. On September 26, 1924, the said truck was burned. Notice and proof of loss were duly filed and payment demanded for the face of the policy. Payment was refused and this suit followed.
The amended petition formally alleges the facts above related; states the truck was a total loss and asks judgment for the face of the policy, the statutory ten per cent for vexatious delay and a reasonable attorney's fee.
The answer admits defendant's corporate existence, the issuance of the policy, receipt of the premium as alleged in the petition, and denies generally all other allegations therein. As affirmative defense the answer avers that the said policy of insurance contains a provision that it was issued and accepted subject to certain stipulations, conditions, representations and warranties, as provided in the application for the said insurance which became a part of the contract and policy; that said stipulations provide that the policy shall not be paid if insured, or his agent, concealed, or misrepresented in writing, or otherwise, any material fact or circumstance concerning the insurance or the subject thereof; or if insured or his agent shall make any attempt to defraud defendant, either before or after the loss.
The answer avers that plaintiff, in his application for said insurance, misrepresented and concealed a material fact and circumstance concerning the insurance and subject thereof, in this, that plaintiff falsely represented that the price of said truck was $ 3150, and that the actual cost thereof to plaintiff, including equipment, was $ 3240, when in truth and in fact, the list price of said truck was only $ 2450, and that it actually cost plaintiff, including equipment, $ 2823.97, and that said facts were concealed from defendant; that defendant relied upon said representations of plaintiff and that had it known that the price of said truck was $ 2450, and that the actual cost thereof to plaintiff, including equipment, was $ 2823.97, it would not have issued the policy, or would not have issued the policy in the amount it was issued, and would have charged a higher premium for the policy.
The answer further alleges that the policy on its face provides that it is non-valued, and that in no event shall defendant be liable beyond the actual cash value of the property so insured at the time of the loss; and that the loss or damage shall be ascertained, or estimated according to such actual cash value with proper deductions for depreciation, however caused; and further provides that in no event shall it exceed what it would cost to replace said property with material of like kind and quality; such ascertainment to be made by plaintiff and defendant, or if they differ, by competent and disinterested appraisers to be selected as specified therein.
The answer stated that immediately after the notice of the fire, defendant demanded that such damage be estimated as provided in the policy, but that plaintiff refused and neglected to comply with this demand; that the value of said truck was far less than the cost of replacing same with a truck of like model, material, kind and quality, and would be far less than $ 1800; that defendant tendered plaintiff the full amount of the premium paid, with interest thereon, upon learning the true facts with reference to the price plaintiff paid for the truck, and that said policy, by reason of the matters and things pleaded in the answer, was null and void.
The reply specifically denies that any false representations were made as alleged in the answer, and states that when negotiating for the truck in question, plaintiff entered into a contract of purchase on June 7, 1921, at which time the purchase price of the said truck was given as stated in the policy; that a later contract was entered into on June 15, 1921, wherein a different price was named; and that through error, and without any intent to defraud, plaintiff in his investigation of the price of said truck, consulted the contract of June 7, 1921, instead of the later contract under which the truck was actually purchased; that the cash purchase price of said truck was, in fact, $ 2923.97, and that in addition thereto plaintiff was required to construct a bed or body thereon which brought the price, including equipment to not less than $ 3000; that said representation was not material to the risk and was not false.
The reply denies that plaintiff refused to enter into an arbitration for the purpose of ascertaining the damage, but on the other hand plaintiff requested defendant to enter into such arbitration, and gave the name of the arbitrator selected by plaintiff and that defendant failed and refused to enter into such arbitration; that at no time did defendant offer to enter into such arbitration and appoint a disinterested appraiser, as provided by the policy, but that defendant named as its appraiser one H. J. Alley who was a representative of, and in the employ of defendant; that the appraiser named by defendant and the one named by plaintiff could not agree upon a competent and disinterested umpire, as was provided in the policy, and that on December 24, 1924, plaintiff again notified defendant by letter that he was willing to enter into an appraisement and defendant failed and refused to reply to said letter and request, but denied liability on the policy and made tender to plaintiff of the premium paid; that fire destroyed the truck on September 26, 1924, and that defendant did not offer to replace the truck until November 14, 1924, after plaintiff had been compelled to purchase a new truck in order to conduct his business. A general denial is also incorporated in the reply.
Upon the pleadings thus made the cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $ 1404 and judgment therefor was accordingly entered. A motion for new trial was unavailing and defendant appeals.
At the close of plaintiff's case and again at the close of all the evidence, defendant asked and the court refused peremptory instructions in the nature of demurrers. These rulings furnish the only basis for the charge of error here presented.
It is pointed out that the policy upon which this suit is based contains the following clause:
"This policy contract shall be void if there has been any concealment, misrepresentations or fraud as to any material fact or circumstance in the procuring of the same."
The defendant urges and the answer states there was concealment of facts and misrepresentations as to the purchase price of the truck. This is denied in plaintiff's reply to defendant's answer and thereby became a controverted issue in the case. The misrepresentation urged is that plaintiff claimed he actually paid $ 2923.97 for the truck, whereas the list price was $ 2450. The evidence of the parties of this issue is somewhat conflicting.
It is shown that the policy in question was written by defendant's agent, one Harry W. Black, who had written policies on other trucks owned by plaintiff and on this occasion Black went to the office of plaintiff and there prepared the application from written data referring to the purchase of the truck, consisting of certain papers relative thereto. Black was presented as a witness by defendant and on cross-examination testified that he prepared the application from the date at hand, fixed the price of the car therefrom and signed plaintiff's name thereto. The witness was asked relative to the signing by him of plaintiff's name to the application.
On cross-examination Black further testified as follows: That he saw the car and considered it worth $ 1800 when he insured it for that; that he estimated the cost of the car at $ 3000, in order to arrive at $ 1800, or sixty per cent of $ 3000. "Q. You were not misled by what Mr. Cohen told you, if he told you $ 3240? A. No, sir.
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Gamel v. Continental Ins. Co.
...the second classification in that they do not deal with the issue before us in this appeal. For example, Cohen v. Ft. Dearborn Casualty Underwriters, 221 Mo.App. 741, 285 S.W. 1024, where the value stated in the policy was arrived at by the insurance agent and not the insured, the court hol......