Appeal
from Circuit Court, Jackson County; F. M. Calkins, Judge.
Action
by A. W. Walker, doing business as A. W. Walker Auto Company
against Fireman's Fund Insurance Company. Judgment for
plaintiff, and defendant appeals. Reversed and remanded with
directions.
This is
an action brought to recover on two insurance policies issued
by the defendant upon certain automobiles in the commercial
garage of the plaintiff. The two policies are similar in
character, and a copy of one here follows:
"Policy
No. 238702.
Form
No. 2.
"Fireman's
Fund Insurance Company.
"Home
Office, San Francisco.
"In
consideration of the warranties and the premium hereinafter
mentioned does insure the assured, named and described
herein, upon the body, machinery and equipment of the
automobile described herein while within the limits of the
United States (exclusive of Alaska, the Hawaiian Islands and
Porto Rico) and Canada, including while in building, on road
on railroad car or other conveyance, ferry or inland steamer
or coastwise steamer between ports within said limits, for
the term herein specified, and to an amount not exceeding the
amount of insurance herein specified, against direct loss or
damage caused while this policy is in force, by the perils
specifically insured against.
"Amount
$ Various. Rate: 1.60. Premium: $ Various.
"Name
of assured: A. W. Walker Auto Company.
"Address
of assured: Medford, Oregon.
"The
term of this policy begins at noon of the 24th day of
January, 1921, and ends at noon on the 24th day of January
1922, standard time.
"Amount
of insurance: Various, to be specified in covering notes
hereunder, _____ dollars ($_____).
"Warranties.
"The
following 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.
"1.
Assured's occupation or business is dealers.
"2.
The following is the description of the automobile:
-------------------------------------------------------------------------------
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Model
Trade Type of Factory List Advertised Horse
Year.
Name. Body. Number. Price. Power.
Various,
as per schedule.
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"3.
The facts with respect to the purchase of the automobile
described are as follows:
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"Purchased
by the Actual cost to The automobile described is fully
Assured.
Assured, paid
_______________________
including for and is not mortgaged or
Equipment.
otherwise
Month
Year New or encumbered, except as follows:
Second
Hand
___________________________________________
See
above.
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"4.
The uses to which the automobile described are and will be
put to are
"5.
The automobile described is usually kept in public garage,
located 29 South Grape street, Medford, Oregon.
"This
policy is made and accepted subject to the provisions,
exclusions, conditions and warranties set forth herein or
endorsed hereon together with such other provisions,
exclusions, conditions or warranties as may be endorsed
hereon or added hereto, and upon acceptance of this policy
the assured agrees that its terms embody all agreements then
existing between himself and the company or any of its agents
relating to the insurance described herein, and no officer,
agent or other representative of this company shall have
power to waive any of the terms of this policy unless such
waiver be written upon or attached hereto, nor shall any
privilege or permission affecting the insurance under this
policy exist or be claimed by the assured unless so written
or attached.
"Provisions
required by law to be stated in this policy: This policy is
in a stock corporation.
"In
witness whereof, this company has executed and attested these
presents; but this policy shall not be valid unless
countersigned by a duly authorized agent of the company.
"J.
B. Levinson, President.
"A.
W. Fallansbee, Jr., Marine Secretary.
"Countersigned
at Medford, Oregon, this 24 day of January, 1921.
"White
& Trowbridge, Agents,
"By
Ben J. Trowbridge.
"Exclusions.
"2.
It is a condition of this policy that it shall be null and
void:
"(c)
If the interest of the assured in the property be other
than unconditional and sole ownership, or if the subject of
this insurance be or become encumbered by any lien or
mortgage except as stated in Warranty No. 3 or otherwise
endorsed hereon;
"(d)
If this policy or any part thereof shall be assigned
without the consent of this company endorsed hereon or in
case of transfer or termination of any interest of the
assured other than by the death of an assured, or any
change in the nature of the insurable interest of the
assured in the property described herein, either by sale or
otherwise.
"Conditions.
"Misrepresentations
and Fraud. This entire policy shall be void if the assured or
his agent has concealed or misrepresented, in writing or
otherwise, any material fact or circumstance concerning this
insurance or the subject thereof; or if the assured or his
agent shall make any attempt to defraud this company either
before or after the loss.
"Fireman's
Fund Insurance Company,
"Dealers
Open Policy--A.
"(Passbook
or Certificate Form.)
"1.
This insurance to attach and cover upon automobiles, owned
and for sale by the assured, consisting principally of
automobiles known by the trade-name of -- Various --,
including bodies, chassis, tops and other equipment attached
to or forming part of such automobiles.
"2.
Subject to all the conditions of this policy, loss, if any,
payable to assured as interest may appear.
"3.
No risk to be declared after the date of termination of this
policy, but the policy as to its conditions governing
declarations made, shall remain in force as to any entry
declared prior to the said date until such entries have been
canceled or shall terminate.
"4.
This insurance subject to the conditions and limitations of
the policy of which this form is a part covers such
automobiles from the time they become the property of the
assured and continues (unless canceled) until said property
is delivered to the purchaser or until same otherwise passes
out of the possession of the assured, this period in no event
to exceed twelve months or to extend beyond 12 months from
date of declaration.
"6.
The object and intent of this policy is to cover subject to
conditions herein contained every automobile, owned and for
sale by the assured, therefore all such risks with their
storage locations shall be reported to this company as soon
as known to the assured and a corresponding entry made in a
passbook provided for this purpose, or a certificate issued
hereunder, and such passbook or such certificate issued
hereunder is hereby made a part of this policy. This policy
shall cover, under the terms and conditions contained herein,
every automobile, owned and for sale by the assured, who, by
the acceptance of this policy expressly covenants and agrees
to report to the company each automobile so owned and for
sale by him and its storage location in the manner provided
herein, and to pay the premiums due hereunder with respect to
the same; failure to so report any such risk shall render
this insurance void as to such automobile or automobiles not
reported. It is further agreed that the company through its
duly authorized agent and at all reasonable times, shall have
access to the assured's books and records for the purpose
of determining the automobiles which should be insured
hereunder, their storage locations and premiums which should
be paid with respect thereto, and that any evasion or
attempted evasion by the assured in the matter of reports of
automobiles, their storage locations or payment of premiums
hereunder shall void this policy, and all insurances
hereunder, and shall be an absolute defense to any suit or
action brought under this policy.
"11.
This insurance does not cover the property insured hereunder
while in any building or premises owned, occupied or
controlled by the assured as a factory or place of
manufacture, but this shall not be taken to refer to
salesrooms or garages.
"12.
This company is not to be liable for any damage to or loss of
the property insured hereunder while being operated in any
race or speed contest nor during a period of twenty-four
hours immediately preceding or following any such race or
speed contest.
"13.
It is a condition of this policy that the automobiles hereby
insured will not be used for carrying passengers for
compensation or rented, or leased during the term of this
policy, and in the event of violation of this condition, this
policy shall immediately become null and void as to the
automobile or automobiles so used.
"16.
The terms and conditions contained in this form supersede
anything to the contrary printed in the policy to which this
form is attached.
"This
slip is attached to and forms a part of policy No. 238702 of
the Fireman's Fund Insurance Company. Dated at Medford,
Oregon, the 24th day of January, 1921.
"White
& Trowbridge, Agents."
No
amount was mentioned in the policies themselves, but each car
is specifically described in a separate covering note, or
certificate, a copy of one of which follows here:
"Copy
for Assured. No. 53730.
"This
covering note is issued in conjunction with and subject to
all the terms and conditions of...
