Morgan v. Union Auto. Ins. Co.

• Citation: 273 P. 527,150 Wash. 443
• Decision Date: 03 January 1929
• Docket Number: 21071.
• Parties: MORGAN et al. v. UNION AUTOMOBILE INS. CO.
• Court: United States State Supreme Court of Washington

273 P. 527

150 Wash. 443

MORGAN et al. v. UNION AUTOMOBILE INS. CO.

No. 21071.

Supreme Court of Washington

January 3, 1929

Department 2.

Appeal from Superior Court, Spokane County; Charles H. Leavy, Judge.

Action by Daniel Morgan and another against the Union Automobile Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

F. A McMaster, of Spokane, for appellant.

E Eugene Davis, of Spokane, for respondents.

FULLERTON C.J.

On July 10, 1926, the respondent Bicknell was the owner of an automobile truck, on which there was an unpaid chattel mortgage in favor of his co-respondent, Morgan. On the date given, Bicknell procured insurance on the truck against loss or damage by fire from the appellant Union Automobile Insurance Company. While the insurance premium seems to have been based on a valuation of $1,500, it was provided, by a rider attached to the policy, that should a total loss occur the company's liability should be the actual cash value of the truck at the time of the loss, anything in the policy to the contrary notwithstanding. On August 4, 1926, during the life of the policy, the truck was destroyed by fire, and in due time proofs of the loss were made to the company pursuant to the terms of the policy. The company, however, refused to recognize liability under the policy, and thereupon the present action was instituted by the respondents jointly to recover thereon. There was a trial by jury and verdict returned in favor of the respondents. The appeal before us is from the judgment entered upon the verdict.

The respondents in their complaint declared upon the contract evidenced by the insurance policy, averring that there had been a total loss of the insured property, and that it was at the time of its loss of the actual cash value of $2,000. The appellant answered, by which it admitted the issuance of the insurance and the loss of the property by fire, but denied that the property was of the actual cash value of $2,000, or of any greater value than $300. By a first affirmative defense, it alleged that the respondents had knowingly made false and fraudulent representations with intent to deceive in their application for the insurance, in that they had represented that the truck was a 1923 model of the manufacturer, whereas in truth and in fact it was a model of 1917 or 1918, and had represented that the purchaser Bicknell had paid $2,000 for the truck, whereas in truth and in fact he had paid therefor only $1,000. By a second separate affirmative defense, it alleged that they had made the same false and fraudulent representations in their proofs of loss. Issue was taken on the allegations of the separate defenses by denials. To the second of the affirmative defenses, the following plea was also interposed: 'Further pleading to defendant's second affirmative defense, plaintiffs allege that said sworn statement of loss was made to defendant long after defendant had fully investigated said loss and was fully advised of all the conditions thereof and said sworn statement was not made with any intent to deceive, and was not in any manner calculated to deceive defendant and that if said defendant had any defense to this action by reason thereof, defendant waived the same, by receipt thereof, fully investigating said loss and acknowledging liability for the same and agreeing to pay plaintiffs the sum of $850 in settlement thereof.'

The appellant moved to strike that part of the quoted paragraph wherein it is alleged that appellant acknowledged liability for the loss and agreed to pay the plaintiffs the sum of $850 in settlement thereof. This motion the court overruled.

On the issues of fact, the evidence was sufficient to carry the case to the jury. While it appeared without controversy that the statements in the written application which was forwarded to the company was erroneous in the particulars set out in the appellant's answer, the evidence was in conflict as to which of the parties was responsible for the error. The insurance was requested by the respondent Morgan at the solicitation of the other respondent, and he orally gave to the agent of the company such information as he had concerning the character and condition of the truck. The written application was filled out by the agent, and it was not signed by or submitted to Morgan or Bicknell before it was forwarded to the company, and our reading of the testimony convinces us that the erroneous statements it contained were a result of a misunderstanding on the part of the agent of Morgan's statements. But mere...