Morris v. The Firemen's Insurance Company of New Jersey

• Decision Date: 10 July 1926
• Docket Number: 26,791
• Citation: 121 Kan. 482,247 P. 852
• Parties: C. M. MORRIS, Appellee, v. THE FIREMEN'S INSURANCE COMPANY OF NEW JERSEY, Appellant
• Court: Kansas Supreme Court

247 P. 852

121 Kan. 482

C. M. MORRIS, Appellee, v. THE FIREMEN'S INSURANCE COMPANY OF NEW JERSEY, Appellant

No. 26,791

Supreme Court of Kansas

July 10, 1926

Decided July, 1926.

Appeal from Coffey district court; ISAAC T. RICHARDSON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

INSURANCE--Insurable Interest in Automobile--Necessity of Purchaser Following Statutory Requirements. One who buys an automobile from any person other than a regular dealer having an established place of business, without requiring the seller to be identified by two persons of the buyer's acquaintance and without requiring a bill of sale to be executed by the seller, with his name and address, and giving an accurate and comprehensive description of the car, and particularly its correct engine number, and containing also the signatures and addresses of the identifying witnesses, has no insurable interest in such automobile against its theft.

Ralph T. O'Neil, John D. M. Hamilton, Barton E. Griffith, all of Topeka, and Ray S. Pierson, of Burlington, for the appellant.

L. H Hannen, of Burlington, for the appellee.

OPINION

DAWSON, J.:

This was an action on a policy of insurance purporting to protect an automobile against theft. The main defense was that plaintiff had no insurable interest in the property.

The ostensible facts were these:

Plaintiff resided on a farm about four miles north of Burlington, county seat of Coffey county. In the autumn of 1923 he let it be known that he wished to buy a car. Several dealers from nearby towns called on him and exhibited their cars and quoted prices. A stranger also called on him, giving his name as that of W. K. Jones, and pretending to be a salesman and representative of the French Motor Company of Osage City, a town thirty miles from plaintiff's residence. Jones called four times, at first offering to sell a second-hand car, but eventually he sold plaintiff a new Ford sedan for $ 773, which was $ 3 less than the price quoted by the Ford dealer in Burlington, and $ 1 less than the price asked by the Ford dealer in Melvern, a little town a few miles further away. Jones delivered the car at plaintiff's farm. Plaintiff testified that he paid the entire price in cash, as he had no confidence in banks and had accumulated the money in the course of a year and kept it in his house. He did not take a receipt for the money, nor did he require or obtain from Jones a bill of sale for the car. Jones disappeared and has never since been heard of. Jones had no connection with the French Motor Company of Osage City and the car had never passed through its hands. Plaintiff applied for a license and in due time received it from the secretary of state. He also took out a policy of insurance issued by defendant to protect the car against theft. A month later the car was stolen, and, like Jones, it has never since been heard of. Plaintiff thinks he correctly read the motor number on the car, and on that supposed number, 8259052, the automobile license was issued and the insurance policy executed. It developed, however, that no Ford sedan ever bore such number; those figures were the engine number of a new Ford one-ton truck purchased from a regular Ford dealer in September of the same year by a farmer in North Carolina and still owned by him.

In his petition plaintiff admitted that he had never received a bill of sale for the car from Jones. Attached to his petition was a copy of the insurance policy, which, among other matters, provided:

"This policy is subject to additional conditions printed on back hereof.

"Perils insured against . . .

"(c) Theft, robbery or pilferage, . . .

"WARRANTIES BY THE ASSURED.

"The assured's occupation or business where the subject of this insurance is used in connection therewith, the description of the automobile insured, the facts with respect to the purchase of same, the uses to which it is and will be put, and the place where it is usually kept, as set forth and contained in this policy, are statements of facts known to and warranted by the assured to be true, and this policy is issued by the company relying upon the truth thereof. . . .

"Title and ownership. This entire policy shall be void unless otherwise provided by agreement in writing attached hereto;

"(a) If the interest of the assured in the subject of this insurance be other than unconditional and sole ownership . . ."

Defendant's answer denied plaintiff's ownership of the automobile, raised the point that plaintiff did not have an insurable interest in it, and stressed the clause in the policy touching "Warranties by the Insured," quoted above, and alleged that plaintiff had breached those warranties by giving defendant an incorrect description of the car, particularly with reference to the number of the motor.

On this joinder of issues the cause came on for trial. Defendant's objection to the introduction of evidence was overruled. The jury returned a verdict for plaintiff for the full amount of the policy and judgment was entered accordingly.

Defendant appeals, assigning various errors which chiefly center about the question whether plaintiff had an insurable interest in this automobile.

The statute, R. S. 8-117, makes it unlawful for any person to buy an automobile from anybody except a regular dealer having an established place of business unless the seller is identified by two acquaintances of the buyer and unless he obtains from the seller a bill of sale in writing, reciting a description of the car, its make, style, year of model, and engine number, and giving the full name and address of the seller, and signed also by the identifying witnesses and giving their addresses. If the automobile which is the subject of the purchase and sale is a second-hand car, the buyer, in addition to the provisions of R. S. 8-117 summarized above, must notify the county sheriff and a police officer of the nearest town of his purchase and give those officials a comprehensive description of the car. (R. S. 8-118.)

One cannot read these statutes without coming to the conclusion that their purpose was to minimize the possibility of permanently depriving owners of automobiles of their property by theft. A car is easily stolen. Its speed will carry its taker hundreds of miles away in one round of the clock. And so the legislature very properly has prescribed this statutory mode for the sale, exchange, or barter of automobiles, to curtail the chances of their successful larceny and sale by thieves, and for enlarging the possibilities of recovering and restoring to their owners automobiles which are stolen. The statute also is designed to protect gullible people from buying stolen cars and from irresponsible vendors of whom nothing is known except what they choose to say or pretend about themselves. In Miller v. Insurance Co., 117 Kan. 240, 242, 230 P. 1030, in discussing the Missouri statute on this general subject, it was said:

"If he had caused a record of the transfer to be made with the secretary of state inside of five days the insurance company would have had opportunity to protect itself against Cohen's fraud. One purpose of the statute is obviously to make it difficult for a thief to dispose of a stolen car, but it has other beneficial effects, one of them being to prevent the tricking of a would-be purchaser into paying for a car after his supposed vendor has parted...