Lindstrom v. Employers' Indem. Corp.
| Decision Date | 06 February 1928 |
| Docket Number | 20882. |
| Citation | 263 P. 953,146 Wash. 484 |
| Court | Washington Supreme Court |
| Parties | LINDSTROM v. EMPLOYERS' INDEMNITY CORPORATION. |
Department 2.
Appeal from Superior Court, Grays Harbor County; Campbell, Judge.
Action by John Lindstrom against the Employers' Indemnity Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
Poe Falknor, Falknor & Emory, of Seattle, for appellant.
Parker & Ashman, of Aberdeen, for respondent.
In this action, upon a policy of collision insurance issued by appellant to respondent, after a trial to the court and a jury, a verdict and judgment for $550 in favor of respondent were entered.
Upon appeal, the principal question to be decided is the construction to be placed upon a provision contained in the policy sued upon, rendering the policy void in the event that the assured was other than the unconditional owner of the automobile covered by the policy.
The complaint alleged, in substance, and it was not disputed that the policy in question was issued by appellant on August 12, 1925; the total premium therefor being $25.20, of which $12.60 was paid upon the issuance of the policy, and the balance to be paid in the event of the happening of any collision within the meaning of the policy. On July 12, 1926 the assured, while operating the automobile covered by the policy, sustained an accidental collision within the meaning of the policy. Due proof of loss was made and served upon appellant, and an investigation made of the collision by appellant's adjuster. Upon investigation, it appeared that respondent was not, at the time of the issuance of the policy nor at any time since then, the unconditional owner of the automobile insured, and appellant declined payment of the collision claim, tendering back to respondent the portion of the premium that had already been paid by him.
In its answer, appellant affirmatively pleaded that the policy contained the following proviso:
It was further affirmatively pleaded that respondent was not, at the time of the issuance of the policy or at the time of the collision, the unconditional owner of the automobile. It was also pleaded that the 'schedule' attached to and made a part of the policy contained a false statement or warranty on the part of the insured, which was contained in statement 10 of the schedule, as follows:
'Statement 10: All of the automobiles described above are owned by the assured, are fully paid for, and are not mortgaged or incumbered, except as follows: No exceptions.'
It was further affirmatively alleged that the policy was promptly delivered to respondent on or about the day of its issuance, and that he had been in possession of it or had access to it at all times thereafter, and had at no time called to appellant's attention the fact that he was not the unconditional owner of the automobile.
These affirmative allegations were denied by respondent's reply. Respondent further, in his reply, alleged that the warranty above referred to was in no way material to the risk, and that at no time had respondent, or any person acting for him, made any untrue statement, representation, or warranty to appellant, that, at the time the application was made, appellant was fully apprised of the condition of the title to respondent's automobile, and appellant at no time questioned respondent as to the condition of the title to his car, and that respondent was led to believe that the condition of the title to his car was in no wise material to the risk assumed by appellant.
The evidence at the trial showed that respondent purchased a 1925 Star automobile from the Callison Motor Company on a conditional sales contract, which contract was assigned by the Callison Motor Company to the Commercial Credit Company. Respondent paid the usual down payment, with the balance to be paid in monthly installments. Shortly after purchasing the car, respondent discovered that there was no collision insurance on it, but only fire and theft insurance. He then applied to one Rundell, at the time sales manager for the Callison Motor Company, asking him to obtain full coverage collision insurance on the car. Rundell ascertained the cost of this insurance from the Rychard Insurance Agency, of Hoquiam, made an oral application for such insurance to that agency, and paid the money required as an advance premium to that agency. The application was made orally to a member of the Rychard Insurance Agency. No written application was required. The Rychard Agency, not being the accredited and legal agent of appellant, is to be deemed the agent of respondent. Reynolds v. Pacific Marine Ins. Co., 105 Wash. 666, 178 P. 811; Day v. St. Paul Fire & Marine Ins. Co., 111 Wash. 49, 189 P. 95.
There is a conflict in the evidence as to whether or not Rundell informed the Rychard Agency regarding the condition of the title to the automobile, and whether or not any inquiry was made of him regarding the title. It being about a year or more after the application was made that the trial was had, Rundell did not remember just what questions were asked him when he made the application for the insurance, but he testified that he knew the automobile was not fully paid for and that he answered truthfully all questions that were asked him when the application was made. He paid the premium to the Rychard Agency, and later the policy was delivered to him, and he retained possession of the same until this suit was instituted. The member of the firm of the Rychard Agency who took the application from Rundell did not testify at the trial. Another member of the firm testified that he heared the conversation between the member who did take the application and Rundell, heard such questions as to ownership asked and answered, and that it was the practice of his firm always to ask the question whether the automobile was fully paid for or not. That situation presented a conflict in the evidence, which was for the jury to weigh as to the weight, credibility, and probability thereof. It may be observed that the interest of Rundell would probably be that he procured a policy providing loss, if any, payable to his company, or his creditor company, as its interest might appear. The policy would have been issued just as readily, for the same premium.
The policy was issued by the Davis Insurance Agency, of Aberdeen. The information for writing the policy was given by the Rychard Insurance Agency by telephone from Hoquiam, and received by a Miss Deering, an employee of the Davis Insurance Agency. From the information she obtained, she herself wrote, and, having authority so to do, signed the policy, and when it had been issued delivered it to the Rychard Agency.
She testified by refreshing her memory from certain notes taken over the phone by her from the Rychard Agency. The answers to the statements contained in the schedule, attached to and included in the policy, were filled in by her from such notes. The original policy was never sent to appellant company, to be signed and issued, but a copy thereof was sent. She testified...
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