Guipre v. Kurt Hitke & Co.
| Decision Date | 29 January 1952 |
| Citation | 109 Cal.App.2d 7,240 P.2d 312 |
| Court | California Court of Appeals Court of Appeals |
| Parties | GUIPRE v. KURT HITKE & CO., Inc. et al. Civ. 4405. |
Flaum & Hecker, Beverly Hills, Stanley Sevilla, Los Angeles, of counsel, for appellant.
N. H. Smedegaard and Winthrop O. Gordon, Santa Ana, for respondent.
Plaintiff, by his guardian, brought this action against appellant Republic Indemity Company of America, and defendants Kurt Hitke & Co., Inc., D. E. Morris, Wilma Oliphant, United Insurers and Inter-Insurance Exchange, to recover upon plaintiff's claim that defendants, as agents of appellant corporation, orally insured or agreed to insure to plaintiff, effective as of the date of the oral acceptance of such risk, a standard form of Insurance for P. L. & P. D., and that defendant United Insurers likewise agreed to issue a collision insurance policy on plaintiff's automobile; that thereafter an accident happened and defendants and appellant, contrary to the terms of the policies, refused to assist in the defense of an action and to pay a judgment rendered against plaintiff.
Plaintiff, as the close of his affirmative case, by the order of the court, elected to proceed against appellant Republic Indemnity Company and defendant United Insurers, and, over their objections, the action was dismissed as to the remaining defendants. A jury returned a verdict resulting in a judgment against appellant for $6,248.02 and against defendant United Insurers for $563. Apparently the latter judgment was satisfied. Republic Indemnity Company appealed.
Plaintiff, then aged 19 years, and a corporal in the United States Marines, arranged to borrow a sum of money from a bank in Balboa to purchase a used car. The bank advised plaintiff of the type of insurance required as a condition to granting the loan. Guipre told his friend Kliewer of this requirement, and Kliewer called defendant Gilmore in Santa Ana, who was a member of the insurance agency firm of Stricklin, Gilmore & Rabun, and who particularly dealt in various kinds of automobile insurance. His company would not handle 'substandard risk', such as this one. Gilmore, on February 6, 1948, then phoned defendant Morris in Anaheim, who was an insurance broker and who, since 1947, had been selling P. L. & P. D., as well as other kinds of insurance for different companies, as broker, or through the office of Kurt Hitke & Co., Inc. in Los Angeles, which company was conducting a general insurance business, and was general agent for Republic Indemnity Company as well as the United Insurers. A major portion of Morris's business was with Kurt Hitke & Co., Inc. in connection with substandard business, and his business was being conducted with them over the phone.
At the trial Gilmore testified generally that due to the fact that his company did not write substandard policies, he called the office of defendant Morris, as he had done on previous occasions, about placing such a policy and gave one of the assistants the required information; that the next day he called Morris and asked him if he had obtained the necessary coverage and Morris stated that he had; that he gave him such additional information as was suggested, such as the car number, amount Guipre borrowed and to whom the loss, if any, was payable; that he specifically asked Morris if the 'risk could be bound' (immediately); that he answered 'Yes', it would be effective immediately; that Morris said he had called (Kurt Hitke & Co., Inc.) and that they had said they would 'take it'; that Kurt Hitke & Co., Inc. asked him to send the additional information to it on a written application form. (This form was placed in evidence and was addressed to 'Kurt Hitke Co.') He then testified that on other occasions he had called Morris when he wanted to place a risk of this type and followed this same procedure, and after presenting the question as to whether such a policy would issue, Morris would quote the rates and say: 'It is bound' or 'You have it', or words to that effect and the policy would be effective as of the date of such phone call ratification, and that subsequently a policy would be forwarded to him, issued as of the date of the call; that these policies were written by the appellant Republic Indemity Company because 'it was the only type of insurance that we could place with Republic, substandard insurance'; that it was the policy of that company to write the insurance and if, after further investigation it desired to do so, it would cancel it and return the premium. He then stated that after this conversation with Morris on February 7th he gave the premium rate figures, amounting to $121, (which was about double the ordinary rate) to Guipre, and told him Morris had advised him the 'coverage was in effect'. He then stated that on February 14th, he received a call about an accident. He testified that he then called Morris and told him the particulars and asked him to contact the necessary adjusting service; that Morris said he would, and made no mention of the fact that the applicant was not covered. He stated that several days later, Morris called him and said that he had been advised that there was no coverage.
Guipre testified he contacted Gilmore about the policy the bank required before the loan would be made; that while in his office Gilmore phoned to Morris; that after the conversation Gilmore gave him the figures and the cost of the insurance; that he gave these figures to the bank and the loan was made after deducting $121 for insurance premiums; that he bought the car and returned to the bank with the pink slip; that the accident happened on the 14th; that a report of it was made and demand was made upon Gilmore to have the insurance company furnish attorneys to defend the suit; that he was told the company refused his request; that similar demand was made on Kurt Hitke & Co., Inc., as well as Morris and that he employed his own attorneys and judgment went against him in the case.
Defendant Morris, called under section 2055 of the Code of Civil Procedure, testified that he placed the name Kurt Hitke & Co., Inc. on the top line of the application blank (Exhibit A) and mailed it to the company, which application showed the coverage and amount of premium on each item, as given to him by that company through defendant Miss Oliphant; that the sum total was $121. He then stated in his deposition that on these substandard risks, prior to this occasion, John D. Lynch, vice president of Kurt Hitke & Co., Inc., had told him that he (Lynch) would write him such a risk 'over the phone' and that 'we bound' lots of them over the phone; and that usually a written application would follow; that he would call the Kurt Hitke office and either Mr. Lynch or Miss Oliphant would take the particulars of the risk and give a rating. He then testified that this was what was done in the instant case; that Miss Oliphant told him 'she would write it'; to 'send it in on a written application'; (the policy period mentioned in the written application was from February 7, 1948, to February 7, 1949); that he then got in touch with Mr. Gilmore. Subsequently, however, he stated in his deposition that Kurt Hitke & Co., Inc. gave him a rate without saying it would write it 'because all the minors had to go in to the company in person for approval'; that this was the absolute direction to him; that he never knew what company, if any, was going to writ it; that in the instant case no company was mentioned; and that he knew Kurt Hitke & Co., Inc. represented several companies. However, in a recorded telephone conversation with Gilmore, it shows that in this particular instance Morris did tell Gilmore that Miss Oliphant 'told him that they would take it', and 'for us to submit it on a written application'. He also told Gilmore than he could not 'bind' the risk, but in order to do so he first had to call Kurt Hitke & Co., Inc.; that that was why he called him, to 'let him bind it'; that he could not understand their attitude because 'they are bound to be stuck for it'. In this conversation Morris's testimony was impeached in many ways. Morris, at that time, was a licensed broker and had an appointment as agent for the United Insurers. He never wrote any business for them except through Kurt Hitke & Co., Inc. On cross-examination Morris stated that Lynch admitted that Miss Oliphant had told Lynch about the call and that she told Morris 'They would write it', but Lynch told him that 'they were unable to place it at that time'. Morris's books show, in his account, 'that a number of the policies he had obtained through Kurt Hitke & Co., Inc. had been canceled and others rejected after the policies had been written'; that among them was one issued by the Republic Indemnity Company. He testified that nearly all of his business with Kurt Hitke & Co., Inc. was substandard business, and that the polices, when issued, were delivered through Kurt Hitke & Co., Inc.
Miss Oliphant testified she received applications for insurance on various forms from Mr. Morris; that if Mr. Lynch instructed her that the United Insurers would accept the collision risk, the practice was to then send that company a copy of the application, and the same rule was true as to the Republic Indemnity Company in reference to P. L. & P. D. insurance. She denied telling Morris 'we would write it', or anything of that nature. She stated she kept books and acted in a secretarial capacity for Mr. Lynch, took such applications as here involved over the phone, and gave 'estimates' of rates, but that she had no authority to bind the risk without taking it up with Mr. Lynch; that many policies were canceled after their issuance upon a flat rate, i. e., 'returning the full amount of premium if it had been received' (because the particular company did not want to stay on the risk); that this was often done after the company read...
To continue reading
Request your trial
-
Home Indem. Co. v. Mission Ins. Co.
...233; Financial Indemnity Co. v. Murphy (1963) 223 Cal.App.2d 621, 627 and 628--631, 35 Cal.Rptr. 913; Guipere v. Kurt Hitke & Co. (1952) 109 Cal.App.2d 7, 15--16, 240 P.2d 312; and see Skyways Aircraft Ferrying Service, Inc. v. Stanton (1966) 242 Cal.App.2d 272, 280--283, 51 Cal.Rptr. 352; ......
-
Apparel Mfrs'. Supply Co. v. National Auto. & Cas. Ins. Co.
...223, 2 P.2d 147; Kazanteno v. California-Western States Life Ins. Co., 137 Cal.App.2d 361, 376, 290 P.2d 332; Guipre v. Kurt Hitke & Co., 109 Cal.App.2d 7, 13-14, 240 P.2d 312; Cronin v. Coyle, 6 Cal.App.2d 205, 212, 44 P.2d 385; Lumbermen's Mut. Ins. Co. v. Slide Rule & Scale Engineering C......
-
Granco Steel, Inc. v. Workmen's Compensation Appeals Bd.
...11 Cal.Rptr. 380; Parlier Fruit Co. v. Fireman's etc. Inc. Co., supra, 151 Cal.App.2d 6, 24, 311 P.2d 62; Guipre v. Kurt Hitke & Co. (1952) 109 Cal.App.2d 7, 14, 240 P.2d, 312; Sholund v. Detroit Fire & Marine Ins. Co. (1933) 172 Wash. 111, 19 P.2d 395.) It is also clear, however, that if t......
-
MGIC Indem. Corp. v. Moore
...1972). A known usage of trade forms a part of the parties' contract absent an expression to the contrary. Guipre v. Kurt Hitke & Co., 109 Cal.App.2d 7, 240 P.2d 312, 316-17 (1952); see, e.g., Skyways Aircraft Ferrying Serv. v. Stanton, 242 Cal.App.2d 272, 51 Cal.Rptr. 352, 361-62 (1966) (ne......