Kenney v. Franklin Fire Ins. Co.

• Decision Date: 08 January 1923
• Docket Number: No. 14549.,14549.
• Parties: KENNEY v. FRANKLIN FIRE INS. CO. OF PHILADELPHIA.
• Court: Missouri Court of Appeals

247 S.W. 249

KENNEY v. FRANKLIN FIRE INS. CO. OF PHILADELPHIA.

No. 14549.

Kansas City Court of Appeals, Missouri.

January 8, 1923.

Rehearing Denied January 29, 1923.

Appeal from Circuit Court, Pettis County; H. B. Shen, Judge.

"Not to be officially published."

Action by Mary Cecelia Kenney against the Franklin Fire Insurance Company of Philadelphia, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Montgomery & Rucker, of Sedalia, and Hogsett & Boyle, of Kansas City, for appellant.

G. W. Barnett, of Sedalia, and Bruce Barnett, of Kansas City, for respondent.

TRIMBLE, P. J.

This is an action on a policy of theft and fire insurance upon an automobile. There was a verdict and judgment in plaintiff's favor for $2,000, and defendant appealed. The contention is that the trial court should have sustained defendant's demurrer to the evidence.

The policy was issued on the 2d day of June, 1920, insuring plaintiff against loss by theft and fire to the amount of $3,300 on an automobile described in the policy as a 1918 model Marmon touring automobile numbered 7171391.

The petition alleged that on the 16th day of October, 1920, said automobile was stolen from in front of certain premises, and afterwards, as a direct result of said theft, was totally destroyed by fire.

The answer admitted the execution of the policy, but set up the breach of three warranties, material to the risk, whereby it was alleged the policy was rendered null and void, to wit: (1) That plaintiff represented that the automobile was a 1918 model, whereas it was a 1917 model. (2) That the list price thereof was $3,950, whereas it was only $3,-100. (3) That the automobile cost plaintiff A3,500, whereas it had cost only $2,164. The answer further set up that upon discovering the breaches aforesaid, defendant tendered the premiums received. The reply did not deny that tender was made, and admitted that the automobile was in fact a 1917 model. But the reply denied that plaintiff made any of the representations charged, except the representation that the automobile had cost $3,500 which, the reply stated, was true. The reply further set up that the defendant's agents either knew the car was a 1917 model and by mistake described it as a 1918 model, or made a mistake in thinking it was such; that the description was written by defendant's agents and was not given by nor obtained from plaintiff, nor was the list price so obtained or given, but was obtained by defendant's agents upon their own investigation.

There is no doubt but that if the car was represented by plaintiff or any one by whom she should be bound, as being a 1018 model, the list price of which was $3,950, and such representations were untrue, then such were material to the risk and would avoid the policy as a matter of law. And this would be true even though such representations were innocently made, where the representations are the basis of the insurance and are relied upon by the insurer. Smith v. American Automobile Ins. Co., 188 Mo. App. 297, 303, 175 S. W. 113.

There was evidence that the car was stolen from in front of the place of business of plaintiff's husband, and that later it was found on the road some three miles over in Kansas where it had burned. So that no question arises as to the right to recover because of any failure to prove the loss through theft and fire, as a protection against which the policy was issued.

According to plaintiff's evidence, she called at the office of the insurance agents to obtain the insurance, and to the lady clerk there in charge showed the bill of sale under which plaintiff had purchased the automobile from one Thompson. The bill of sale showed the purchase price was $3,500, and it also showed that the car was made in 1917. The lady clerk in charge of the office looked over the bill of sale and remarked, "This is an '18 model"; that it was a car "built in 1017 used. in '18." Plaintiff asked her if that was an '18 model, to which the clerk replied, "Yes." Plaintiff did not tell her it was an '18 model, but asked her if it was. There is no evidence that plaintiff knew better or in any way led the agent to think it was a 1918 model. The clerk then made a pencil memorandum from which to draw the policy and asked plaintiff where the car was, and plaintiff told her it was at the Atlas Motor Car Company's display place, that being the place it was when purchased, and it had not yet been taken home by plaintiff. The clerk then said they would send some one to look at the car. Plaintiff then left, and in a few days she received the policy from Ihe agents through the mail. The car was not brought home for several days after plaintiff purchased it.

The lady clerk's testimony was put into the case by defendant through her deposition; and she states that the policy was written under her...