Hirsch v. City of New York Insurance Company

• Decision Date: 29 December 1924
• Citation: 267 S.W. 51,218 Mo.App. 673
• Parties: HARRY HIRSCH, Respondent, v. CITY OF NEW YORK INSURANCE COMPANY, Appellant.
• Court: Kansas Court of Appeals

267 S.W. 51

218 Mo.App. 673

HARRY HIRSCH, Respondent, v. CITY OF NEW YORK INSURANCE COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City

December 29, 1924

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

H. B Shain, W. D. O'Bannon and Mark A. McGruder for respondent.

Fyke Snider & Hume for appellant.

OPINION

BLAND, J.

This is a suit upon a fire and theft insurance policy issued upon an automobile. There was a verdict and judgment in favor of plaintiff in the sum of $ 1100 and defendant has appealed.

The policy insured the automobile for one year beginning the 5th day of November, 1922. The car was stolen and destroyed by fire on September 6, 1923. The policy recites that plaintiff was the owner of the automobile and provides--

" . . that this entire policy shall be void unless otherwise provided by an agreement in writing added thereto; (a) if the interest of the assured in the subject of this insurance be other than unconditional and sole ownership."

The evidence shows that the car was purchased by plaintiff from a dealer at Sedalia, Missouri, in the month of December, 1921. The car was acquired and used by plaintiff for general family purposes. Plaintiff was away from home a great deal, being a traveling salesman, and without his knowledge and consent a certificate of title was taken out by his wife in her name on February 6, 1922. About thirty days after the policy was taken out, plaintiff in looking over the papers found the certificate of title had been so taken out. He thereupon notified the agent of defendant of this fact and the agent told him that "it was all right; that don't make any difference."

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that the evidence shows that plaintiff was not the owner of the automobile, that title to the automobile is in his wife and, therefore, plaintiff had no insurable interest in it. The case was tried and submitted by plaintiff upon the theory of waiver, but, of course, it is well settled that a contract of insurance is void unless the insured has some insurable interest in the subject-matter and that the insurance company cannot be held to a contract of insurance on the principle of waiver where the company could not make such a contract in the first instance. [Wisecup v. Ins. Co., 186 Mo.App. 310; Lafont v. Ins. Co., 193 Mo.App. 543, 548.]

The question then is whether the taking out of the certificate of title by plaintiff's wife without his consent and unknown to him conclusively shows that he was not the owner of the property. The Act of July 30, 1921, which became effective on November 2, 1923, Laws of 1921, p. 90 (extra session) provides--

"Four months after this law takes effect and thereafter, it shall be unlawful for any person to buy or sell in this State any motor vehicle or trailer registered under the laws of this State, unless, at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this State, without the assignment of such certificate of ownership, shall be fraudulent and void. In the case of dealers, a separate certificate of ownership, either on such dealer's immediate vendor, or of the dealer himself, shall be required in the case of each motor vehicle in his possession, and the commissioner shall determine the form in which application for such certificates of ownership and assignments shall be made, in case forms differing from those used for individuals are, in his judgment, reasonably required; provided, however, that no such certificates shall be required in the case of new motor vehicles or trailers sold by manufacturers to dealers."

The Act further provides (page 89)--"Application shall be made upon a blank form furnished by the commissioner and shall contain a full description of the motor vehicle or trailer, manufacturer's or other identifying number, together with a statement of the applicant's source of title and of any liens or encumbrances on the motor vehicle or trailer. The commissioner shall use reasonable diligence in ascertaining whether the facts stated in such application are true, and, if satisfied that the applicant is the lawful owner of such motor vehicle or trailer, or otherwise entitled to have the same registered in his name, shall thereupon issue an appropriate certificate over his signature and sealed with the seal of his office, procured and used for such purpose."

The certificate of title issued by the commissioner of motor vehicles to plaintiff's wife recites--

"I do further certify that I have used reasonable diligence in ascertaining whether or not the facts stated in said application for a certificate of title are true and that I am satisfied that the applicant is the lawful owner of the above-described motor vehicle, or is otherwise...