Goodell v. Union Automobile Insurance Company

• Decision Date: 26 November 1923
• Docket Number: 22539
• Citation: 196 N.W. 112,111 Neb. 228
• Parties: JOE GOODELL ET AL., APPELLEES, v. UNION AUTOMOBILE INSURANCE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

196 N.W. 112

111 Neb. 228

JOE GOODELL ET AL., APPELLEES, v. UNION AUTOMOBILE INSURANCE COMPANY, APPELLANT

No. 22539

Supreme Court of Nebraska

November 26, 1923

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

Doyle & Halligan and J. S. Garnett, for appellant.

W. D Oldham and W. L. Minor, contra.

Heard before MORRISSEY, C. J., DEAN and GOOD, JJ., REDICK and SHEPHERD, District Judges.

OPINION

GOOD, J.

Action by plaintiffs, as copartners, to recover on a policy of insurance, issued by defendant, insuring plaintiffs' automobile against theft. Defendant admitted the issuance of the policy; denied all the other allegations of the petition and for a further defense pleaded that plaintiffs had misrepresented a material fact in their application for the insurance which deceived the defendant to its injury. The misrepresentation complained of was that plaintiffs had falsely stated that the automobile was fully paid for and unincumbered; that defendant relied on said statements, and, had it known they were false, it would not have issued the policy; that, as soon as it learned the falsity of the statements (which was subsequent to the loss), it tendered the plaintiffs the premium they had previously paid. Plaintiffs' reply was a general denial. A trial to the court without the intervention of a jury resulted in a judgment for plaintiffs for the full amount of the policy. Defendant appeals.

The only assignment of error is that the findings and judgment are not sustained by the evidence. The record discloses the following pertinent facts: April 25, 1921, plaintiffs purchased a Ford car and gave in payment therefor their promissory note for $ 610, due on or before the 25th day of July, 1921, and which contained the following mortgage clause: "For value received on the above note, I hereby sell and mortgage unto the payee thereof the following goods and chattels, to wit: One Ford touring car with starter and motor No. 4470331, now in my possession and free from incumbrance." April 28, 1921, plaintiffs signed a written application to the defendant for the policy of insurance involved in this action. The statements in the application show that the automobile was purchased for $ 610, its actual cost to assured $ 610, and the question, "Is automobile fully paid for?" is answered by "Yes." The automobile was stolen May 13, 1921. At that time no part of the promissory note, given for the purchase price, had been paid. The information contained in the application for insurance consists largely of questions and answers. Defendant's agent testified that he asked one of the plaintiffs if the car was fully paid for and was given an affirmative answer; that he did not ask him all of the questions contained in the application, but did ask the question as to how much he had paid for the car, and if it was fully paid for. On the other hand, the plaintiff who signed the application testified that the insurance agent asked but a single question, and that was what the car cost, and that he correctly answered the question.

The trial court made no specific findings of fact, but found generally for the plaintiffs. It is asserted by defendant that the court reached...