Harris v. A. P. Nichols Investment Company

• Citation: 25 S.W.2d 484
• Decision Date: 17 February 1930
• Docket Number: 16815
• Parties: F. A. Harris, Respondent, v. A. P. Nichols Investment Company, Appellant
• Court: Kansas Court of Appeals

25 S.W.2d 484

F. A. Harris, Respondent, v. A. P. Nichols Investment Company, Appellant

No. 16815

Court of Appeals of Missouri, Kansas City

February 17, 1930

Appeal from Jackson Circuit Court.

Affirmed.

Henry L. Arnold, J. Bland J. concurs; Trimble P.J. absent.

OPINION

Henry L. Arnold

This is an action seeking damages for a violation of an alleged agreement under which defendant was to secure insurance for plaintiff against the theft of merchandise from his automobile.

Briefly states the facts are defendant is a corporation organized under the law of the State of Missouri, with authority to conduct an insurance brokerage business and agency in Kansas City, Missouri. In May, 1922, plaintiff who was a dealer in valuable linens and laces selling principally direct from his automobile, desired a policy of insurance covering theft of goods from his car. He went to the office of defendant through whom he had secured various policies of insurance for a number of years, and there talked with a Mr. Bennett secretary of said company, and was told defendant, in their agency department, did not write such a policy as he desired. At the same time Bennett, in the presence of plaintiff called the office of W. B. Johnson & Company, also general insurance agents in said city, and inquired if they could write or procure the kind of policy desired. Plaintiff then was told such a policy could be issued and the amount of the premium which would be at the rate of $ 20.00 per thousand coverage. About a week later plaintiff returned to defendant's office and told Bennett he had decided "to get one of those policies for $ 2,000.00." Bennett then called Johnson & Company and ordered it. He stated to plaintiff the policy would be mailed to him as soon as it came, or he could come to the office for it. Some ten days later, about June 15, 19 plaintiff received the policy designated "Commercial Traveler's Form", which was issued by the Continental Insurance Company of New York. Upon receipt of a statement therefor, plaintiff paid to defendant the sum of $ 40.00, the amount of the premium, out of which it appears defendant retained the sum of $ 4.00 as compensation for its part in the transaction.

It is in evidence plaintiff had not previously known of W.B. Johnson & Company. A theft occurred from his automobile parked on Walnut Street between Tenth and Eleventh Streets, public streets in Kansas City, Missouri, at about three o'clock p.m. on or about Oct. 5, 1922, while plaintiff was at a bank nearby. Laces and linens contained in a suit case, alleged in the petition to be of the value of much more than $ 2,000.00, were stolen. It further appears plaintiff reported the loss to Bennett who told him to bring in his policy; that on the following day he took the policy to defendant's office and in company with Mr. Bennett, went to the office of W.B. Johnson & Company and later to the office of an adjuster for the Continental Company, where a proof was prepared. The adjuster stated the claim would be forwarded to New York. No suggestion was made at that time that the policy did not cover the loss. Several days later plaintiff was informed that his policy did not include the risk in question and that his loss was not covered thereby.

It is admitted of record that neither plaintiff nor any of defendant's officers or employees ever examined or read the policy prior to the loss; that plaintiff collected from W.B. Johnson & Company the sum of $ 500.00, in settlement of a suit instituted against, them, based upon their alleged failure to issue the kind and character of contract desired, and ordered from their agency. The release executed to them is not shown in evidence and we are not informed of its terms.

Mr. Bennett testified on behalf of defendant company that he was its secretary; that he called by telephone two firms of insurance in seeking the type of policy desired; that in the presence of plaintiff he told Mr. Melling of W.B. Johnson & Company the kind of policy plaintiff desired; that he was informed that said company could issue a policy covering theft of articles from an automobile; that upon being so advised, he ordered it; that W.B. Johnson & Company selected the particular policy and company; that the policy was mailed to plaintiff without examination by one of the employees of defendant company during the absence of witness from the city; that it was the custom and practice of insurance agents and brokers where a policy had been ordered by one agent or broker from another recognized agency, that it would not be read by the broker or agent receiving it, except, perhaps, merely to check up the name of the assured and the amount of the coverage.

Plaintiff's petition alleges in substance the corporate status of the defendant, the nature of its business; that it was plaintiff's custom to carry his merchandise in an automobile for display to prospective customers, of which defendant had notice; that for a valuable consideration defendant promised and agreed to secure for plaintiff a policy of insurance insuring plaintiff against theft of merchandise from his automobile, in the amount of $ 2,000.00. It is then charged that a theft occurred on October 5, 1922, and plaintiff thereby sustained a loss of more than $ 2,000.00; "that defendant in violation of its agreement neglected and failed to secure for plaintiff a policy insuring him against loss by theft of his merchandise from his automobile"; that plaintiff has been able to recover only the sum of $ 500.00 to apply on said loss. Judgment is asked in the sum of $ 1500.00.

The amended answer of defendant, upon which the cause was tried, is as follows:

"Now comes defendant and for answer to the petition of plaintiff:

1. States that if plaintiff has suffered any loss or damage by reason of the matters and things alleged in his petition, said loss or damages was, without any fault of this defendant, caused or contributed to by the negligence of the plaintiff himself, in that he failed to ascertain between the date upon which he alleges defendant agreed to obtain for him a policy of insurance as described and the date upon which the alleged loss occurred, whether the property in question and the alleged loss or kind of loss in question, were properly covered by insurance;

2. And states that plaintiff has heretofore received and accepted the sum of $ 500.00 in full payment for the alleged loss and as satisfaction therefor, and that thereby all persons, firms and corporations, including this defendant, were and was released from any and all liability in connection with the matters and things set forth in plaintiff's petition, and that plaintiff is now estopped from seeking any recovery from defendant or any other persons, firm or corporation on account of the matters alleged in the petition.

3. States that plaintiff, by reason of his failure to ascertain for the period of approximately four months whether the alleged loss in question or class of loss was covered by insurance, is estopped to set up the matters herein.

4. States that plaintiff has elected to pursue a remedy other than and inconsistent with the one here sought and is therefore barred in the present action.

5. Further answering, defendant denies each and every allegation contained in the petition, and prays that defendant be dismissed with its costs."

The reply was a general denial. By agreement of parties a jury was waived. The court found the issues for plaintiff and judgment in the sum of $ 1500.00 as principal, and $ 310.00 as interest was entered accordingly. After unsuccessful motions for a new trial and in arrest of judgment, defendant appeals.

Defendant urges, first, in connection with the refusal of the court to give its declarations of law "A" and "B" offered in the nature of demurrers to the evidence, that plaintiff's action is one founded on negligence. Reasoning therefrom, it is argued that the evidence not only fails to show any negligence on the part of defendant, but establishes the fact that plaintiff was guilty of contributory negligence which should bar a recovery. The point then is concluded with the statement "if it is in contract, then plaintiff's own negligence prevents any substantial recovery."

Preliminary to considering this charge of error, which goes to the foundation of the action, it is proper to reexamine the allegations of the petition. Under the facts alleged, we do not believe it can be seriously contended that plaintiff's action is ex delicto rather than ex contractu. The petition does not charge a negligent performance of a contractual duty, but on the contrary, as plaintiff contends, it alleges a breach of a contractual agreement by a failure and neglect to perform the very foundation of the contract, namely, to secure the kind and character of the policy the plaintiff had in contemplation. The allegation to which our attention has been directed, which we have set out above, goes only to the manner of making the breach. We think plaintiff's position in this respect is proper and hold the contention of defendant in this respect is without merit.

Further examining the alleged error in the light of the foregoing, we find plaintiff's evidence, offered in support of his petition, tended to prove and understanding and agreement on the part of the defendant to secure a certain type of policy of theft insurance for a consideration which it received. There was substantial evidence of defendant's failure to carry out this undertaking. We conclude therefore the trial court was not in error in so holding.

It seems proper at this point in considering further the assignments of error, to examine the declarations of law and requested findings of fact so far as material to the issues presented,...