State v. Bland

• Decision Date: 31 December 1926
• Docket Number: No. 27383.,27383.
• Citation: 291 S.W. 499
• Parties: STATE ex rel. BULL DCG AUTO INS. ASS'N OF CHICAGO v. BLAND et al., Judges.
• Court: Missouri Supreme Court

291 S.W. 499

STATE ex rel. BULL DCG AUTO INS. ASS'N OF CHICAGO v. BLAND et al., Judges.

No. 27383.

Supreme Court of Missouri, Division No. 1.

December 31, 1926.

Motion for Rehearing Denied February 16, 1927.

Certiorari by the State, on the relation of the Bull Dog Auto Insurance Association of Chicago, to Ewing C. Bland and others, Judges of the Kansas City Court of Appeals. Writ quashed.

For opinion of Court of Appeals, see McGee v. Newton Burial Park, 290 S. W. 644.

Walter W. Calvin, of Kansas City, Wayne C. Townley, of Washington, Ill., and Bert S. Kimbrell, of Kansas City, for relator.

L. N. Musser, of Kansas City, for respondent George H. Andrews.

LINDSAY, C.

Certiorari. A judgment in favor of George H. Andrews, and against this relator was affirmed by the Kansas City Court of Appeals upon the second appeal in the cause, and it is insisted that the rulings made therein are in conflict with controlling decisions of this court.

The suit was one upon a policy of insurance of an automobile against loss by fire and theft. The facts and the issues made by the pleadings are set forth in the opinion a the Court of Appeals upon the first appeal (Andrews v. Bull Dog Auto Ass'n, 258 S. W. 714); and the statement thereof, by reference, is made part of the opinion upon the second appeal, and is as follows:

"The original policy for $1,500 was issued February 25, 1921, on `Oldsmobile touring car, 1920 model, motor No. 33332.' But afterwards, by a rider attached to the policy, and dated March 9, 1921, the insurance under the former policy was canceled, and insurance in the sum of $1,700 was created on insured's `"new" automobile,' described as `Oldsmobile Motor No. 33332; type of body, touring; No. of cylinders, 8; advertised H. P. 26; year's model, 1920.'

"The petition declared upon the contract as created by the policy and rider, and was in the usual form, alleging that the automobile on April 2, 1921, was stolen and destroyed by fire, and that defendant took charge of the wreck and disposed of it, but has refused to pay plaintiff his loss.

"The defense was false representations, constituting breach of warranties, as follows: (1) That said automobile was not mortgaged, when in fact it was; (2) that the motor number was given as 33332, when insured well knew such was not. correct; (3) that the automobile was purchased new in March, 1920, from the Oldsmobile Motor Company, when in fact insured had purchased same secondhand from an individual in February, 1920; (4) that insured had paid $2,300 therefor, when in fact he had paid less than that.

"The answer also set up that before defendant had learned the true facts it took possession of what was thought to be the salvage and wreck of the car, and sold it for what it was worth, but upon learning the facts it had tendered to plaintiff the amount the salvage had brought, together with the full amount of premium received.

"The reply consisted of a general and a specific denial of the matters alleged in defense of the action. The reply also alleged that insured told defendant's agent the facts as they existed at the time.

"There is no question but that the written application, dated February 25, 1921, signed by insured, and on which the original policy was issued, stated that the automobile was a model of 1920, purchased of the Oldsmobile Company in March, 1920, at the price of $2,300, and that it was not a secondhand car, and was not mortgaged.

"It is also conceded that plaintiff did not purchase the car new in March, 1920, of the Oldsmobile Company, but he bought it on February 24, 1920, of James Lo Bello, who was acting for a man by the name of Van Horn, who owned the car; that the purchase price paid for the car was not $2,300 but $1,850, of which amount $250 was paid in cash, and the balance represented by what seems to be an installment note, payable in installments of $50 each month for a year, and then the whole of the balance of said note became due, the whole secured by chattel mortgage.

"To meet the above situation, plaintiff testified in substance as follows: That when he bought the car, the insurance Van Horn had on the car was assigned to him, but it was about to run out, and, a friend having recommended the defendant as a good company, and plaintiff had found other insurance companies `pretty high,' he called up Robinson, defendant's manager, over the telephone, and told him the insurance he had would run out that day, February 24, 1921; that Robinson told him, `That's all right, come in to-morrow, and I will make out the policy. You are covered from now on;' that the next day he went to Robinson's office, and the latter asked him questions, which he answered, while Robinson filled out the application, which he (plaintiff) signed without reading.

"Plaintiff further testified that Robinson asked him the type of the automobile, and he told Robinson it was a '20 model, seven-passenger, eight-cylinder Oldsmobile; that his recollection was Robinson asked him where he bought it, and he told Robinson he bought it from Lo Bello; that Robinson asked him what he paid for it, and he told Robinson he paid $1,850; that Robinson asked him if the car was mortgaged, and he told him it was, but that he had arranged to take it up.

"Plaintiff testified that in answering the questions put to him by Robinson when the latter wrote up the application, he, plaintiff, sat on the opposite side of the table, across which he could see Robinson filling out the application, but he could not see what he wrote, nor did he read the application, relying on him to write it properly; that afterwards the policy was issued and delivered to him, and he put same in his desk without reading it; that later he lost some `accessories,' and, having purchased a number of these, he went to see Robinson, and learned from him that his policy did not cover accessories; that Robinson asked him why he wanted more insurance, and he told Robinson he had purchased a number of accessories for the car and if his policy did not cover them he wanted one that did; that at Robinson's suggestion he, plaintiff, wrote to the home office of the company, and it replied, saying the car could carry only $1,500 insurance, but if its condition was such that more coverage should be granted, the company would be glad to hear from him further. While the record is not as explicit as it might be on the matter now to be stated, yet it would seem from what does appear therein that plaintiff, or some one, noted on the bottom of this letter the various accessories he had purchased and their prices, all under the heading, `The following are the reasons why I should have $1,700 ins.' This was apparently sent to the home office, and afterward it issued and sent the above-mentioned rider dated March 9, 1921, wherein it was recited that the company `hereby consents that the policy of George H. Andrews of Kansas City, Mo., shall be canceled and changed from his automobile previously insured under policy No. 21675-2, to his "new" automobile described below, and car. Coverage on same starts from the date named herein; trade-name, Oldsmobile; motor No. 33332; type of body, touring; No. of cylinders, 8; advertised H. P. 26; year's model, 1920.' The insurance was fixed in the rider at $1,700, both for fire and theft.

"Plaintiff testified that upon receiving the rider and noticing that it referred to a `new' automobile, he went to Robinson and asked him about it, and Robinson replied: `That's all right; that's their way of increasing them you attach that to your policy; that covers the accessories you have insured.'"

After stating the circumstances attending the theft and destruction of the car, not necessary to be stated here further statement of pertinent facts is as follows:

"There was evidence that the list price in Kansas City of the car when stolen and destroyed was $2,300, cars being higher then.

"In explanation of the error in the motor number of the car, plaintiff testified that it was taken from the last `Missouri state automobile registry certificate;' the true number being 3332, but in making it out a typographical error occurred, whereby, instead of B-3332, the number was written `3-3332,' and this became 33332 in the policy.

"As to the mortgage on the car, plaintiff testified that the installment note and chattel mortgage provided that at the end of the year the full amount of the balance fell due, and he had negotiated to pay off the note, and so told Robinson; also that about the time it was due he did pay it off but he did not get it back until afterwards, as the canceled note Was left with the payee until the latter could release the chattel mortgage. It would seem from the record that the note, marked canceled March 8, 1921, was introduced in evidence, but it was not copied by appellant into the record. At any rate, whatever may have been the situation with reference to the mortgage at the time the original policy was issued, there was in fact no mortgage on the automobile at the time of the issuance of the rider March 9, 1921.

"Plaintiff admitted that the bill of sale, introduced in evidence, dated February 24, 1920, from James Lo Bello to plaintiff for the car, at the price of $1,850, was obtained from Lo Bello after the car was stolen, and that he obtained it because defendant had asked for or required it.

"Robinson, defendant's manager, admits he wrote the application, but denies that plaintiff telephoned him the day before, and swears positively and explicitly that he correctly wrote down the answers just as plaintiff gave them, and that the latter answered the questions just as they were shown in the application, and that, after the application was written up, he handed it to plaintiff and told him to read it over, and plaintiff did so and signed it."

The contention of counsel for relator is that, having found the statements in the application were untrue, that plaintiff could read and write;...