Davis v. The Yorkshire Insurance Co., Ltd.

• Decision Date: 06 July 1926
• Parties: MARIE DAVIS, RESPONDENT, v. THE YORKSHIRE INSURANCE CO., LTD., APPELLANT. [*]
• Court: Kansas Court of Appeals

288 S.W. 80

221 Mo.App. 798

MARIE DAVIS, RESPONDENT, v. THE YORKSHIRE INSURANCE CO., LTD., APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

July 6, 1926

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

C. I Bennington and Bente & Wilson for respondent.

Paul Barnett for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action to recover loss under a policy of automobile insurance.

Defendant is a corporation engaged in insuring automobiles in the State of Missouri and elsewhere, against loss by fire and theft. On July 29, 1924, defendant issued its policy whereby, in consideration of a premium of $ 18.18, and an additional premium of $ 10.08, it insured plaintiff against loss by fire and theft of her fifty-five horse-power six cylinder Nash coupe, with all fixtures and equipment thereunto belonging for a term of one year, beginning July 29, 1924, and ending at noon July 29, 1925. The said car was stolen from plaintiff's residence, 507 East 14th street in Kansas City, Mo., March 8, 1925. Plaintiff notified the police department of Kansas City of the theft and also verbally notified defendant insurance company.

The petition alleges the formal matters relative to the issuance of the policy of insurance, the amount thereof, the description of the car; that any loss under the terms of the policy was to be paid to Homer Hall of Sedalia, Mo., as his interest might appear, and that said Hall at that time held a chattel mortgage against said car in the sum of $ 895 which represented part of the purchase price thereof, of which defendant was freely advised at the time the said policy was issued; alleges that the car was stolen from its parking place near plaintiff's residence; that notice of such loss was given defendant; that the car had been stolen and the place from which it was stolen, as required by the terms of the policy; states that although plaintiff had fully complied with all the terms of the policy and demanded payment of the sum of $ 1800 due her thereunder, that defendant has failed and refused to pay plaintiff for said loss, and that said failure and refusal constitute vexatious delay. The prayer asked for judgment in the sum of $ 1800, six per cent interest from March 8, 1925, the statutory ten per cent for vexatious delay and $ 400 attorney's fee.

The answer admits the execution of the policy upon the date, for the term and in the amount alleged in the petition, and states there was a rider attached to said policy and made a part thereof, in words and figures as follows:

"Automobile Department.

"Locking Device Endorsement.

"In consideration of a reduction in premium, it is warranted by the assured that the automobile insured under this policy will be continuously equipped with the locking device known as Studebaker transmission (approved by the Underwriters' Laboratories, Inc., and bearing their label). The assured undertakes, during the currency of this policy, to use all diligence and care in maintaining the efficiency of said locking device and in locking the automobile when leaving the same unattended.

"Attached to and forming a part of policy No. A 136718 of the Yorkshire Insurance Company, Ltd., of York, England.

"Issued at

Agency.

"Dated 7-29-24.

"Agent."

The answer states that upon the issuance of said rider it was agreed in consideration of a reduction in the premium paid, that the automobile should be continuously equipped with a locking device approved by the Underwriters' Laboratories, Inc., and bearing their label; that plaintiff would use all diligence and care to maintain the efficiency of said locking device during the life of the policy and in locking the said automobile when leaving the same unattended; that it was mutually agreed that the locking device on said car is one known as Nash transmission, and that the automobile insured should be continuously equipped with said device, during the life of the policy; that in consideration of such agreement, defendant reduced the premium upon said policy and that said agreement was attempted to be reduced to writing in the form of said rider attached to the policy, but by mistake the said locking device was described therein as a Studebaker transmission, which is not fitted to be used on Nash cars; that defendant delivered to plaintiff said policy with the mistake contained in the rider, which policy containing said misdescription was accepted by plaintiff either by mistake or purposely, fraudulently with knowledge that said description was a mistake and did not express the agreement of the parties, and with intent to obtain a reduction in the premium upon said policy without entering into the warranties and agreement concerning said locking device; that this defendant does not know whether it be one or the other, but believes that plaintiff accepted said policy with said mistake and description therein by mistake; or, it was a mistake of defendant which was knowingly and fraudulently accepted by plaintiff, but believes it was a mutual mistake of the parties. And that by said agreement of the parties and by said policy of insurance, if reformed according to equity and right, the defendant did insure the plaintiff against loss or damage by fire or theft, as stated in her petition. That it was further provided in said policy that in the event of loss or damage, the assured, within sixty days unless such time were extended in writing by defendant, would render a statement to defendant signed and sworn to by the assured, stating the place and time and the cause of the loss or damage, the interest of the assured and of all others in the property, the sound value thereof, and the amount of loss or damage, all encumbrance thereof and all other insurance whether valid or not, covering said property.

That under the terms of said policy the assured would submit to examination under oath by any person named by defendant and subscribe the same; and by its terms the policy also provided that the policy should be void in case of any fraud, attempted fraud or false swearing by the assured touching any matter relating to the insurance, or the subject thereof, whether before or after the loss.

The answer avers that after suit herein had been instituted and after the time for proof of loss had expired, an examination of plaintiff was taken under oath by one Guy Shirley, an officer of the Insurance Adjustment Company, designated therefor by defendant on June 11, 1925; that said examination was in the form of an affidavit, subscribed and sworn to by assured, and stated that she was the owner of the automobile; that it was stolen on March 8, 1925 from the rear of her residence at 507 or 509 East 14th street in Kansas City, Mo.; that she had not used said automobile for several days prior to the date of its theft and that it had been parked at the said place during that time; that the shifting gear lock on said car was out of commission and had not been working for a month or more prior thereto; that defendant does not know whether said affidavit is true or false, but charges that said locking device had, in fact, been out of working order for at least a month prior to the date of the alleged theft; that assured did not use all diligence and care in maintaining the efficiency of the same, but allowed it to remain out of order to the extent that it could not be used to lock said car for at least a month prior to the alleged theft, in violation of the contract; that plaintiff did not use all diligence in locking said automobile when leaving same unattended, but left same unattended and unlocked in an open space in a large city both day and night in violation of her contract; that plaintiff in making said affidavit was guilty of false swearing touching a matter relating to the insurance and the subject thereof; or that plaintiff allowed said locking device to remain out of order so that it could not be used to lock said car effectively; that defendant believes the facts stated in said affidavit to be true, but that in either event plaintiff is not entitled to recover.

The answer further states that the plaintiff did not, within sixty days after the theft, furnish defendant any proof of loss as required by the policy. The prayer asks that the court ascertain and determine the real intent and agreement of the parties, and that the policy of insurance be reformed to express said intent, and that the court declare that the terms of said policy of insurance so reformed have been violated by plaintiff.

The reply states that the clause relative to the locking device was placed upon said policy by defendant, and that if there was a mistake relative thereto, it was defendant's and not plaintiff's fault; that the car was at all times equipped with a Nash transmission lock which was always maintained in good and effective repair; that the same was locked when the said car was parked and was so locked at the time the car was stolen; that plaintiff has fully complied with the terms of the policy relative to the transmission lock.

Further replying, plaintiff states that within a short time after the said car was stolen, she notified defendant thereof, giving the place from which stolen and the date of the theft; and later, on several occasions, all within the period required for such notice, plaintiff notified defendant in writing that the car had been stolen and demanded settlement under the terms of the policy, and requested defendant to furnish her blank proofs of loss, if same were required. But that d...