Co. (Mo.) supra, I., and OHIO FARMER'S INS. Co. v. TODINO, supra, IV.

In Misheloff v. American Cent. Ins. Co. (1925) 102 Conn. 370, 128 Atl. 33, a condition in a standard policy of insurance of an automobile against burglary, that it shall be void if the assured's interest is other than that of unconditional and sole ownership, was held not to be unreasonable.

The fact that assured shared title to a car with another, who intended to pay part of its price, but never did so, and never used it, has been held not to be a breach of his warranty of unconditional and sole ownership. Automobile Ins. Exch. v. Wilson (1923) 144 Md. 249, 124 Atl. 876.

An insurer has been held not to be entitled to avoid liability, under a policy insuring a car against theft, upon the theory that assured was not its unconditional and sole owner, where the latter had purchased it in good faith and no other person claimed to own the car, notwithstanding a former apparent owner had acquired his title by a forged bill of sale (Norris v. Alliance Ins. Co. (1923) — N. J. L.

123 Atl. 762), or notwithstanding the car had been previously stolen from another, whose insurer had reimbursed him for his loss, and thereby become its owner (Savarese v. Hartford F. Ins. Co. (1924) N. J. —; 123 Atl. 763). And see Giles v. Citizens' Ins. Co. (1924) 32 Ga. App. 207, 122 S. E. 890, supra, I.

In Savarese v. Hartford F. Ins. Co. (N. J.) supra, the court said: "The fallacy of this reasoning [that plaintiff had no insurable interest, not being unconditional and sole owner] springs from a misconception of what is understood to be the meaning, in its common acceptation, of the phrase 'unconditional and sole ownership,' as used in the policy of insurance. There is no pretense on part of the appellant [insurer] that the ownership of the plaintiff of the automobile was 'conditional.' The stress of appellant's argument is placed upon the term 'sole ownership,' which under the facts of this case it is claimed the plaintiff [assured] did not possess. We think that 'sole ownership' as used in the

policy can properly mean nothing more than that no one else is interested with the insured, in the ownership of the car. In this view, it is obvious that there was no violation by the plaintiff of the condition of the policy." And the court took the view that the assured was warranted in believing that he was sole owner of the car, having had undisturbed possession of it for two years, and no one having come forward to claim it, even at the time of the trial.

In Continental Ins. Co. v. Burns (1924) 144 Md. 429, 125 Atl. 232, there I was held to be sufficient evidence for the jury to decide whether insured was the sole and unconditional owner of a car for the theft of which he sued upon the policy, and which the insurer contended had been stolen before the insured bought it.

And, as to a violation of the sole and unconditional ownership stipulation by one who had signed a lease precluding his right to recover under a policy, see Goldberg v. Knickerbocker Ins. Co. (1924) 82 Pa. Super. Ct. 302, and Schloss v. Importers' & E. Ins. Co. (1924) 83 Pa. Super. Ct. 426. In the latter case the policy was held to have been void when it was issued, and not to have become effective by reason of the completion of rent payments before the car was stolen.

In the Misheloff Case (Conn.) supra, a conditional vendee of a car, who had only partially paid for it when he took out a policy, was held not to be entitled to enforce reformation of the policy, or to recover for the car which was stolen, where the policy provided that it should be void if the assured's interest was other than unconditional and sole ownership, or if the car was or became encumbered, and it appeared that the insurer had no knowledge of the encumbrance until after the stealing, the assured having made no statement as to his interest in the car and having been asked no questions as to same, and not having read the policy. The decision was based upon the ground that no mutual mistake had occurred, since the contract which the insurer had in mind

and issued was different from that which the assured had in his mind.

Knowledge by insurer's agent, at the time the policy is written, that assured shared his title with another, constitutes a waiver of a warranty of unconditional and sole ownership. Automobile Ins. Exch. v. Wilson (Md.) supra. And see this case under subd. VI.

In the Misheloff Case (Conn.) supra, it was held that the condition as to sole and unconditional ownership was not waived where neither the broker nor the agent who negotiated the sale of the policy made any inquiry as to the title; also, that the acceptance and retention of premiums under the policy without knowledge of the defective title did not amount to a waiver, and that the insurer was not by its conduct estopped to rely upon the breach of this condition to avoid liability under the policy.

In Andrews v. Bull Dog Auto F. Ins. Co. (1924) Mo. App. - 258 S. W. 714, it was held that the insurer's defense of breach of warranty to an action for loss of a car by burglary and fire was for the jury, where the policy originally stated that the car was not mortgaged, but the assured claimed to have told the agent about a mortgage, and that he did not see what the latter wrote in the policy, and where the mortgage note was paid before a rider was attached to the policy, substituting a corrected description and increasing the amount of in

surance.

In Hessler v. North River Ins. Co. (1925) 211 App. Div. 595, 207 N. Y. Supp. 529, where the assured sought reformation of his policy by striking out the words "No exceptions," which were inserted after the sole and unconditional ownership clause, and the substitution therefor of a clause stating that he purchased the car under a conditional contract of sale and owed an unpaid balance, he was held to be entitled to rebut the defense of breach of warranty as to ownership and of concealment of a material fact, and to recover under the policy for theft, by showing that he told the insurer's agent that he did not own the

car outright, but bought it under a conditional contract, and that the agent told him that he would get the necessary information for the policy from the dealer who sold the car, but failed to do so and misstated the facts, the question whether the agent made such a statement being for a jury to decide.

The court reasoned that to hold otherwise would enable the insurer to perpetrate a fraud upon the assured by receiving his money and giving him nothing of value in return.

In the Hessler Case the court held that the clause in the policy providing that the local agent could not waive any provision thereof unless in writing was not applicable to a waiver before the policy became effective, but only to a waiver after the issuance of the policy; and also held that an insurer which, after knowledge of a forfeiture under a policy, negotiates with the assured and recognizes the policy's validity, will be liable thereunder.

VI. Description of car. (Supplementing annotation in 14 A.L.R. 220; 19 A.L.R. 174; 24 A.L.R. 744; and 30 A.L.R. 666.)

The case of Felakos v. Ætna Ins. Co. (1922) N. J. L. -> 119 Atl. 277, set out in the annotation in 30 A.L.R., at page 667, was followed in Silverman v. American Eagle Fire Ins. Co. (1924) N. J. L. —, 126 Atl. 468, holding that the insurer was not liable for theft of a car where the assured had represented it to be a 1917 car, and it was shown to have been sold in 1915, the court also holding that the jury's verdict that the stolen car was not the same as the one sold in 1915 was against the weight of the evidence, since it bore the same serial number at the time of such sale and at the time it was found after the stealing.

Representations in a policy that the cost of a car was a certain amount and that assured was its sole owner have been held to be waived by the assured's filing with insurer, after it was stolen, a statement indicating that it cost a less amount, together with the circumstances that insurer inves

tigated the title, subsequently recovered the stolen car, retained it and also the premium, made an offer of settlement, and did not deny liability up to the time of suit. Automobile Ins. Exch. v. Wilson (1923) 144 Md. 249, 124 Atl. 876.

In Andrews v. Bull Dog Auto F. Ins. Co. (1924) Mo. App. -, 258 S. W. 714, it was held that a jury should decide, upon conflicting evidence, as to whether false statements in reference to a car in an application for a policy were attributable to the assured or to the insurer's agent, where the application was made out by the latter and stated that the assured had bought the car new from a manufacturer for $2,300, where assured claimed to have told the agent that he had bought it secondhand from another for $1,850, and that he did not see what the agent wrote, and where, as a result of assured later adding accessories to the car and requesting more insurance, the insurer attached to the policy a rider increasing the amount of insurance and describing the car as new.

And as to misrepresentation of the cost of a car being ground for avoiding a policy, see Puro v. Franklin F. Ins. Co. (1924) 83 Pa. Super. Ct. 164.

In Andrews v. Bull Dog Auto F. Ins. Co. (Mo.) supra, the insurer also relied upon the assured erroneously stating, in his application, the motor number of the car, which the assured explained to have been due to a typographical error in copying from a registry certificate, and this discrepancy was apparently considered by the court to be material to the risk.

The misdescription of a car by giving a wrong motor number, which, without the owner's knowledge, has been placed on the car and the correct number thereon concealed, is not sufficient to render a policy void. Giles v. Citizens' Ins. Co. (1924) 32 Ga. App. 207, 122 S. E. 890.

And see Continental Ins. Co. v. Burns (1924) 144 Md. 429, 125 Atl. 232, holding that there was sufficient evidence to go to the jury on the question whether the assured had given the insurer a correct description of

a secondhand car, which he had purchased from another, where he gave as the factory number one which the seller had told him was such.

In Boudreau v. Imperial Guarantee & Acci. Ins. Co. [1923] 2 D. L. R. 57,

Quebec,, in view of a Quebec statute, providing that warranties must be true, if affirmative, and that otherwise the contract may be annulled, notwithstanding the assured's good faith, a warranty that a car was a 1917 model, whereas it was a 1915 model, was held to avoid the policy, notwithstanding the assured bought it on the representation that it was a 1917 model.

But see Western Assur. Co. v. CapIan [1924] (Can.) S. C. R. 227, [1924] 2 D. L. R. 935, holding that where an assured had given a note for part of the price of a car, but stated that he had fully paid for it, this did not constitute a misdescription nor the suppression of a fact material to the risk, in view of the fact that there was no mortgage or lien on the car.

VII. Proofs of loss; excessive or fraudulent claim.

(Supplementing annotation in 14 A.L.R. 220; 19 A.L.R. 174; 24 A.L.R. 745; and 30 A.L.R. 668.)

Sufficient proof of loss within thirty days after discovery of the loss was held to have been given where the assured gave the agent who wrote the policy a detailed report of the circumstances as to the loss, and efforts made to recover the car, about a month and a half after the loss occurred, and then turned over to an adjuster the formal proof which the agent prepared for him, and where the actual time of the discovery was not indicated. Lozier Auto. Exch. v. Interstate Casualty Co. (1923) 197 Iowa, 935, 195 N. W. 885. And in a case involving the conversion of another car, apparently under the same policy, the proof of loss given under similar circumstances to the adjuster, who later told assured to make out a new one because the original one could not be found, was held sufficient. Lozier Auto. Exch. v. Interstate Casualty Co. (1924) 197 Iowa,

1130, 198 N. W. 501. And in the latter case it was held that a provision requiring the assured to "give the company immediate notice of any event which may be or become the basis of any claim by the assured" did not require him to give notice of a default in payment by the conditional vendee, who disappeared with the car.

A provision in a policy that a failure to make proof of loss within sixty days will void the policy has been held to have been waived by a subsequent filing of the proof, following which the insurer investigated the loss, requested an affidavit of ownership and power of attorney, both of which were furnished by the assured, and as the result of a conference made an offer of settlement, and this notwithstanding the insurer's lack of knowledge until later that the assured had assigned his claim to another, and in regard to an alleged conspiracy upon the assured's part to defraud it. bell v. National F. Ins. Co. (1924) Mo. App., 269 S. W. 645.

Camp

In Hessler v. North River Ins. Co. (1925) 211 App. Div. 595, 207 N. Y. Supp. 529, it was held that, although a local agent could not, within the sixty-day period, waive the filing of the proof of loss within such time, a special agent having apparent authority to waive it might do so, the question whether the proof was waived being for a jury.

In Wieson v. Automobile Ins. Co. (1924) — N. J. L. 126 Atl. 652, it was held that it was for the jury to decide whether proof of loss was made within the sixty-day period, where a witness testified to delivering proof within such time, but the proof apparently bore a later date. It was also held that upon appeal the insurer could not object to the trial court's remark to the jury that there was proof of waiver of the sixty-day limit, where the insurer had not objected to the evidence as to such waiver without its having been pleaded.

In American Ins. Co. v. Ott (1924) 101 Okla. 111, 223 Pac. 131, the requirement as to proof of loss was held to have been satisfied or waived, where immediately after the theft of

the car the assured filed with insurer's agent a "notice of loss," giving the facts as to the loss on a blank form which was furnished to him by the agent, and where insurer accepted the "notice" and failed to demand the "proof," but investigated the claim and told assured, in reply to a question, that he had done all that was required under the policy.

In Springfield F. & M. Ins. Co. v. Booher (1924) 102 Okla. 89, 226 Pac. 1028, holding that the filing of the proof of loss was waived, where assured notified insurer's agent of the theft immediately, and where the latter's adjuster then made a searching examination and both the agent and the adjuster told assured that he did not need to do anything further, the court said that assured had been "lulled into security," and that insurer I was not deprived of knowledge of a single fact which would have been communicated by a formal proof. In Collins v. Phoenix Assur. Co. (1924) Mo. App., 258 S. W. 732, where the insurer relied upon the renting of a car in violation of the terms of the policy, to avoid liability thereunder for theft, it was held upon demurrer that the proof of loss signed and sworn to by the assured without reading it, stating that the latter had rented the car, was not conclusive as an admission, but that evidence denying the renting should be allowed to go to the jury.

The decision of Falls City Plumbing Supply Co. v. Potomac Ins. Co. (1922) 193 Ky. 734, 237 S. W. 376, as set out in the annotation in 19 A.L.R., at page 174, holding that a requirement as to giving notice of loss forthwith is satisfied by giving it within a reasonable time, and that the question whether the notice is given within a reasonable time is for the jury, unless the lapse of time is so long as to be obviously a noncompliance with the contract, was approved in Northwestern Nat. Ins. Co. v. Cohen (1924) 138 Va. 177, 121 S. E. 507, holding that, where a car disappeared on a Saturday night and its loss was not reported until the following Monday morning, the question whether such a requirement as

to notice had been sufficiently complied with was properly submitted to the jury. And in this case the court approved an instruction that if a release had been given by the assured without consideration, or had been obtained by the insurer by fraud or misrepresentation, it would be of no

effect.

A requirement in a policy that immediate notice be given of a loss by theft has been held to be reasonably and substantially complied with, where assured sent same to insurer by registered mail seventeen days after the car disappeared. Southern Casualty Co. v. Landry (1924) - Tex. Civ. App., 266 S. W. 804.

In Fidelity Phoenix F. Ins. Co. v. Oldsmobile Sales Co. (1924) Tex. Civ. App., 261 S. W. 492, the court, upon rehearing, sustained a finding that requirements in a policy as to notice and proof of loss were waived, where the agent had denied liability. As to letters written after the expiration of the sixty-day limit, within which proof of loss is required, being relevant to show waiver of such requirement, see Continental Ins. Co. v. Burns (1924) 144 Md. 429, 125 Atl. 232.

As to sufficiency of proof of loss to which no objection is made until after the expiration of sixty days following its filing, see Goldberg v. Employers Liability Assur. Co. [1922] 1 West. Week. Rep. 529, 66 D. L. R. 716, Alberta, -.

And a proof of loss stating the time, place, and cause of damage to a car was held to be sufficient in Boyle v. Yorkshire Ins. Co. (1925) 56 Ont. L. Rep. 567, holding that it was not necessary that it state that the taking constituted theft.

The question whether a provision in a policy that it will be void if any attempt is made by the assured to defraud the insurer is violated by the assured's act of claiming, for the theft of his car, an amount which the insurer claims to be in excess of the price for which a new car of the same sort could have been purchased at the time, has been held to be for the jury. Campbell v. National F. Ins. Co.

.

(Supplementing annotation in 14 A.L.R. 220, and 24 A.L.R. 745.)

As to the effect of the recovery of a stolen car upon the amount of damages, see cases cited in subd. IX. infra.

The case of O'Connor v. Maryland Motor Car Ins. Co. (1919) 287 Ill. 204, 3 A.L.R. 787, 122 N. E. 489, was relied upon in Goldberg v. Employers Liability Assur. Co. [1922] 1 West. Week. Rep. 529, 66 D. L. R. 716, Alberta, in holding that the assured, whose car was stolen, became entitled to recover the full face value of the policy at the expiration of the sixty days from the date on which the proofs of loss were filed, and that his right to recover this amount was not affected by the fact that the car was subséquently recovered by the insurer.

IX. Damages.

(Supplementing annotation in 14 A.L.R. 220; 19 A.L.R. 175; and 30 A.L.R. 669.)

The damages recoverable under a nonvalued theft and fire policy for a total loss are measured by the actual market value of the property at the time the loss occurs. Gibson v. Glens Falls Ins. Co. (1924) 111 Neb. 827, 197 N. W. 950, affirming a judgment for $837.33, upon condition that it be reduced to $550 and interest, where the insurer's evidence indicated the latter amount as the value of the car.

In the Gibson Case it was stated that in case of partial loss under a nonvalued policy the measure of recovery would be the difference between the actual market value of the insured property immediately before and its value immediately after the damage or injury thereto occurs.

And the market value of the car at the time of the burglary was held to be the amount recoverable under the policy, in Campbell v. National F. Ins. Co. (1924) Mo. App., 269 S. W. 645.

And see Southern Casualty Co. v. Landry (1924) Tex. Civ. App. —, 266 S. W. 804, holding evidence of the