Glens Falls Ins. Co. v. Hall

• Decision Date: 26 April 1935
• Citation: 259 Ky. 25
• Parties: Glens Falls Insurance Co. v. Hall.
• Court: United States State Supreme Court — District of Kentucky

259 Ky. 25

Glens Falls Insurance Co. v. Hall.

Court of Appeals of Kentucky.

Decided February 22, 1935.

As Modified on Denial of Rehearing April 26, 1935.

1. Insurance. — In action on fire policy on automobile which insurer claimed was stolen, insurer had burden to prove insured's lack

of title, since possession of automobile and bill of sale was prima facie evidence of title.

2. Evidence. — Court cannot take judicial notice that manufacturer would not use similar numbers on two automobiles, or that it would not place same factory number on two automobiles and at same time use different engine or motor numbers.

3. Trial. — Peremptory instruction is correctly given when, admitting every fact shown by complainant's evidence to be true, as well as all reasonable inferences that can be drawn from proof, establishment of case has been made.

4. Insurance. — In action on fire policy on automobile which insurer claimed to be stolen, evidence as to insured's title to automobile held not to support peremptory instruction for insurer.

5. Insurance. — Conflicting evidence as to insured's misrepresentation of alleged material facts in automobile fire policy, including value and model of automobile, held for jury.

6. Continuance. — Denial of continuance to enable defendant to produce additional testimony, where all facts which it was suggested might have been secured were before jury either in deposition or in affidavits which were admitted in evidence by stipulation of parties, held not abuse of discretion (Civil Code of Practice, sec. 315).

7. Continuance. — Denial of continuance because plaintiff did not present himself to be subjected as if on cross-examination before trial held not error, where defendant eight days before trial applied to plaintiff's attorneys to produce client, without taking out process requesting plaintiff to appear at any time or place, and inability to locate plaintiff was not demonstrated (Civil Code of Practice, sec. 606, subsec. 8).

8. Continuance. — Where plaintiff failed to present himself to be subjected as if on cross-examination before trial, as requested, defendant desiring further time to investigate facts revealed by plaintiff on trial was required to make manifestation thereof to court, followed by request for setting aside of impaneling of jury and postponement of trial (Civil Code of Practice, sec. 606, subsec. 8).

9. Appeal and Error. — In action on fire policy on automobile which insurer claimed was stolen, argument that insured did not trace his title to automobile back to factory because he did not know that title was being questioned until filing of answer, and exhibiting answer with date of filing to jury, held not prejudicial error.

10. Appeal and Error. — In action on automobile fire policy, refusal to allow adjuster who was insurer's witness to remain in courtroom at counsel table during trial, after separation of witnesses was ordered on adjuster's motion, held not error in absence of showing of prejudice.

11. Appeal and Error; Trial. — Ruling on question of allowing witness to remain in courtroom after rule for separation is ordered, is in trial court's discretion, and unless some substantial right has been prejudiced by ruling, reversal will not be had.

Appeal from Fayette Circuit Court.

FRANK M. DRAKE and WM. A. MINIHAN for appellant.

HARRY B. MILLER, I. JAY MILLER and B.L. KESSINGER for appellee.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

In July, 1932, appellee George W. Hall purchased what he claimed was a 1931 model Studebaker President Eight automobile from the Hodges Motor Company of East Peoria, Ill., paying as he says $1,800 for the car; $200 in cash, $200 the trade in value of his old car, and fourteen slot machines at an agreed valuation of $100 each. The Hodges Company then executed to him a bill of sale. He says he did not record this bill of sale in Illinois because business took him to Toledo, Ohio, some time in August of the same year, and he was compelled to buy an Ohio license on the ground that he was using the car in conducting his business, and in procuring the license he was required to and did file his bill of sale in Toledo.

The appellee went to Lexington, Ky., some time in September, 1932, and in October being desirous of borrowing some money made application to the Guaranty Finance Company and offered his car as a pledge for the anticipated loan. He was advised that the loan could be negotiated, but one of the requirements was that the car should be insured. It is in evidence that the Loan Company directed appellee to Mr. Respass, an agent of the appellant, and on October 18, 1932, the insurance company through Mr. Respass issued him its policy of insurance on his car to the amount of $1,200. On October 20, he obtained a loan of $390 from the Guaranty Company, giving the company a mortgage on the car.

On November 1, 1932, about 9 or 9:30 p.m., appellee was driving the car on the Lexington-Nicholasville road. Some distance from Lexington the car caught fire and burned to such an extent that it seems agreed that there was a total loss. Appellee then made claim on his policy for the loss; the company failed to pay and in January, 1933, he filed suit praying for judgment on his policy to the full amount.

Appellee first answered by way of a general denial, but later by amended answer, specifically pleaded nonliability because it was alleged that appellee had represented to the agent of appellant that the car was new, that it was a 1931 model, and that appellee had paid $2,290 for same, all of which statements were alleged to be untrue and known so to be, and that said misstatements were of material nature. The company further pleaded that appellee had no title because the car was one which had been stolen from its rightful owner, a Mr. Hannifin of Chicago. The affirmative allegations of the answer were traversed.

Upon a submission of the case the jury returned a verdict in favor of appellee for the full amount sued for, which was $1,200, the face of the policy.

The appellant contends that the court erred in failing to give a peremptory instruction in favor of the company, on the ground that it had sufficiently proven that appellee had made misrepresentations in obtaining the policy, and had shown conclusively that the appellee had no title to the car. It is contended that the court erred in overruling the motion for a new trial on the following complaints: That the verdict was not sustained by the evidence; that the court should have sustained appellant's motion for a continuance; improper argument of counsel for appellee; and the refusal of the court to permit Smith, an insurance adjuster, to be present with counsel during trial, after a separation of witnesses.

A discussion of the proof offered will serve to dispose of the first two complaints of appellant.

As said above, the appellee claims to have bought the car in question from the Hodges Motor Company in July. The description taken from the bill of sale and filed in the record is as follows: "One President 8, Studebaker Sedan, 1931 Model, painted blue color. Serial #6018444, Motor No. 18282." In the certificate of registration (Ohio) the numbers are the same, except the word "factory" is used instead of "serial" and the letters F.E. appear before the numerals 18282.

It is admitted that the possession of the car and the bill of sale is prima facie evidence of title, therefore the burden of proving no title would rest with the party denying title, and the state of facts upon which appellant claims that the car was stolen presents a rather peculiar situation.

Mr. Aubrey Cason, manager of the Capitol City Auto Company, New Orleans, La., testified by way of deposition that on September 12, 1929, his company purchased from the Studebaker Corporation several cars, among which was a Studebaker President Eight Brougham, which bore serial No. 6018444, engine No. 18232. Mr. Cason further deposed that on December 30, 1929, his company sold and delivered this car to George M. Broaphy of Chicago. He attaches to his deposition a bill showing the sale of the car to Broaphy, on the date above mentioned; the bill showing the sale of "1 Studebaker President 135 #Brougham S-6018444-M 18232-$2585.00."

Broaphy's deposition was not taken, but R.E. Hannifin of 5200 Blackstone avenue, Chicago, deposes that Broaphy prior to March 6, 1932, transferred the car to him. He files an undated photostatic copy of a writing which states: "All my right title and interest in Studebaker President 8, Sedan Serial #F.E. 18232, Motor #6018444 is vested in R.E. Hannifin. George M. Broaphy."

Hannifin then testifies that on March 6, 1932, at 5 or 5:30 p.m. he left his car in front of the Blackstone Hotel in Chicago, and when he returned at 6:30 the car was gone. He says that he had it insured against theft, with the Federal Insurance Company, and that on May 5 the company adjusted the loss by paying him $1,400, whereupon he assigned all his title and interest to the Insurance Company, and that at no time did he sell or assign the car to any other person. Johnson, agent of the company, says that when he learned of the loss he made report thereof to the company's attorneys, who had an investigation made, and the company paid the loss as above stated. He does not go into details as to what the report showed as a result of the investigation, but says the loss was paid on account of the theft of the car.

To further complicate matters with relation to the denial of the ownership, before the trial was begun appellant was permitted to introduce affidavits as to what absent witnesses would say. It was shown that Samuel Lochs, 1732 Fifty-Second street, New York City, in the latter part of 1929 purchased from the Brewster Garage a new Studebaker President Eight Brougham, bearing factory No. 6018400, engine No. 18282, and that he still owned and was driving the car. This brought his possession down to...