Engh v. Calvert Fire Ins. Co.

• Decision Date: 06 April 1954
• Citation: 266 Wis. 419,63 N.W.2d 831
• Parties: ENGH, v. CALVERT FIRE INS. CO.
• Court: Wisconsin Supreme Court

Page 831

63 N.W.2d 831

266 Wis. 419

ENGH, v. CALVERT FIRE INS. CO.

Supreme Court of Wisconsin.

April 6, 1954.

This action was commenced on January 29, 1952, by the plaintiff, Joseph Engh, of Milwaukee, against the defendant, Calvert Fire Insurance Company, a Pennsylvania corporation, for damages arising out of the failure of the defendant carrier to pay a collision loss to the plaintiff under an automobile insurance policy issued by the defendant to the plaintiff covering a 1951 Ford F-8 model cab and chasis (also known as a tractor) for the period May 22, 1951, to May 22, 1953. The insured vehicle was severely damaged in a collision at Wilkinsburg, Pennsylvania, on August 29, 1951, when it left the highway and crashed into a tree. Trial was to the court. Judgment in favor of the plaintiff was entered on July 9, 1953, for $5,784.05 damages, interest, and costs. It is from this judgment that the defendant appeals. In this case the defendant also appeals from an order of the trial court denying defendant's motion to review the judgment and reduce the amount.

William F. Double, Milwaukee, for appellant.

Ruben J. Cain, Milwaukee, for respondent.

STEINLE, Justice.

The plaintiff, Joseph Engh, purchased the insured vehicle from Gunderson Motor Company in Milwaukee on May 9, 1951, for $5,674.56. Financing charges and insurance premiums brought the total time price for the tractor to $6,615.80, with payments on balance due in 24 months and $195.99 monthly. The plaintiff used the vehicle for hauling purposes under a contract with Prefab Transit Company. At the time of the collision plaintiff had operated the truck for about 20,000 miles.

On August 29, 1951, while Engh was driving the tractor near Pittsburgh and was pulling a heavy loaded trailer, the brakes failed and the tractor and trailer crashed into a tree. After the collision Engh caused the tractor and trailer to be towed to a nearby garage. At that place he telephoned to the Pittsburgh office of the Commercial Credit Company, which held the conditional sales contract on the trailer and reported the collision and loss of the wrecked tractor to the finance company and to the insurer's representative. He was told that the insurer would inspect the damaged truck. Engh returned to Milwaukee. There, James Doherty, an adjuster for the insurer, obtained a written statement from Engh in the form of an accident report. Discussion was had then and there between Engh and Doherty as to the possible repair of the truck, Doherty told Engh that he would be obliged to await papers from Pittsburgh before giving an answer. Engh phoned Doherty several times thereafter to ascertain what was going to be done. Doherty advised Engh to furnish a proof of loss. On October 20, 1951, Engh sent a written proof of loss to the insurer. He also sent a letter nominating a loss appraiser. The policy of insurance contained a condition that if the insured and the company failed to agree as to the amount of loss, each party could select a competent and disinterested appraiser, who together with an umpire, selected by the appraisers, were to appraise the loss and make award. Doherty told Engh that the truck was a total wreck; that the company 'took it as salvage,' and estimated the salvage value at $700. On May 12, 1952, Three Rivers Motors Company of Wilkinsburg, Pa. wrote Engh that, 'the truck was removed from our garage by Hudecek Motor Company of Allegheny River Boulevard, Oakmont, Pa., shortly after the Insurance Company negotiated for its release.' Engh testified that Doherty had told him four or five different times, 'that the truck belongs to the insurance company now.' Engh, at no time wished or asked to have the wrecked car repaired. However, an estimated cost of repair of $4,731.63 was furnished by Three Rivers Motors Company of Wilkinsburg, Pa. to the defendant.

At adjuster Doherty's suggestion Engh in September, 1951, inquired from Gundersen Motor Company and also Shallock Ford Company as to the cost of a new truck. Forty Nine Hundred Dollars was the price indicated by both of said dealers. Doherty offered to adjust the loss on such basis less $100 deductible item per policy and $50 towing expense, or a total of $4,750. Engh declined that offer. Appearing of record is a written offer by Hudecek Motor Company of Oakmont, Pa. addressed to Calvert Fire Insurance Company (on insurance company printed form) dated November 1, 1951, offering cash bid on salvage of tractor in the amount of $750. While Doherty at the trial admitted that in September, 1951, he had agreed on behalf of the Insurance Company in his representative capacity to retain the salvage for which $700 had been offered, nevertheless later, after Engh had declined Doherty's offer, the adjuster told Engh that the claim of salvage would be his responsibility from then on. The plaintiff did not transfer certificate of title to the defendant, nor did the defendant or the finance company ever demand it. Engh denied that Doherty had told him that Engh would be required to pay for the storage. On October 30, 1952, almost 14 months after the loss, the defendant notified the plaintiff that it had received notice that the truck was to be sold at public sale for towing and storage charges.

When the plaintiff, Joseph Engh, purchased the truck from Gundersen Motor Company in Milwaukee, that agency handled the financing arrangement of the truck through Commercial Credit Company and the insurance coverage through Calvert Fire Insurance Company. Engh did not deal personally with representatives of those companies either as to financing the truck or insuring it. Before he bought the truck Engh informed the sales manager and also a salesman of Gundersen Motor Company that he intended to use the truck in long distance hauling in the business of transporting Prefab homes. A rider on the insurance policy provided that:

'* * * it is warranted by the insured that no regular or frequent trips of commercial vehicles described in such Policy are or will be made during the policy period to any location beyond a 150 mile radius from the limits of the city or town of principal garaging of such vehicles.'

Engh's tractor had been garaged in Milwaukee. When Engh discovered the distance restriction rider in the policy he personally went to Gundersen Motor Company and contacted Lee S. McBride, the salesman who had handled his deal. Then and there representatives of Gundersen Motor Company telephoned to Commercial Credit Company requesting the elimination of the 150 mile radius endorsement. However, there is no reference in the record that the finance company or the insurance company ever thereafter consented in writing to such change of the policy. Engh, from the date he acquired the truck until the collision, made 2 trips to Michigan and 2 to...