« PreviousContinue »
Co. (Mo.) supra, I., and OHIO FARM- policy can properly mean nothing
In Misheloff v. American Cent. Ins. ested with the insured, in the ownerCo. (1925) 102 Conn. 370, 128 Atl. 33, ship of the car. In this view, it is a condition in a standard policy of obvious that there was no violation by insurance of an automobile against the plaintiff of the condition of the burglary, that it shall be void if the policy." And the court took the view assured's interest is other than that that the assured was warranted in beof unconditional and sole ownership, lieving that he was sole owner of the was held not to be unreasonable. car, having had undisturbed posses
The fact that assured shared title to sion of it for two years, and no one a car with another, who intended to having come forward to claim it, even pay part of its price, but never did so, at the time of the trial. and never used it, has been held not In Continental Ins. Co. V. Burns to be a breach of his warranty of un- (1924) 144 Md. 429, 125 Atl. 232, there conditional and sole ownership. Au- was held to be sufficient evidence for tomobile Ins. Exch. v. Wilson (1923) the jury to decide whether insured 144 Md. 249, 124 Atl. 876.
was the sole and unconditional owner An insurer has been held not to be of a car for the theft of which he sued entitled to avoid liability, under a pol- upon the policy, and which the inicy insuring a car against theft, upon surer contended had been stolen bethe theory that assured was not its fore the insured bought it. unconditional and sole owner, where (And, as to a violation of the sole the latter had purchased it in good and unconditional ownership stipulafaith and no other person claimed to tion by one who had signed a lease own the car, notwithstanding a for- precluding his right to recover under mer apparent owner had acquired his a policy, see Goldberg v. Knickertitle by a forged bill of sale (Norris bocker Ins. Co. (1924) 82 Pa. Super. V. Alliance Ins. Co. (1923) — N. J. L. Ct. 302, and Schloss v. Importers &
123 Atl. 762), or notwithstanding E. Ins. Co. (1924) 83 Pa. Super. 'Ct. the car had been previously stolen 426. In the latter case the policy was from another, whose insurer had re- held to have been void when it was imbursed him for his loss, and thereby issued, and not to have become effecbecome its owner (Savarese v. Hart- tive by reason of the completion of ford F. Ins. Co. (1924)
rent payments before the car 123 Atl. 763). And see Giles v. Citi- stolen. zens' Ins. Co. (1924) 32 Ga. App. 207, In the Misheloff Case (Conn.) 122 S. E. 890, supra, I.
supra, a conditional vendee of a car, In Savarese v. Hartford F. Ins. Co. who had only partially paid for it (N. J.) supra, the court said: “The when he took out a policy, was held fallacy of this reasoning [that plain- not to be entitled to enforce reformatiff had no insurable interest, not be- tion of the policy, or to recover for the ing unconditional and sole owner] car which was stolen, where the policy springs from a misconception of what provided that it should be void if the is understood to be the meaning, in assured's interest was other than units common acceptation, of the phrase conditional and sole ownership, or if 'unconditional and sole ownership,' as the car was or became encumbered, used in the policy of insurance. There and it appeared that the insurer had is no pretense on part of the appellant no knowledge of the encumbrance un(insurer] that the ownership of the til after the stealing, the assured havplaintiff of the automobile was 'condi- ing made no statement as to his intertional.' The stress of appellant's ar- est in the car and having been asked gument is placed upon the term 'sole no questions as to same, and not havownership,' which under the facts of ing read the policy. The decision was this case it is claimed the plaintiff based upon the ground that no mutual [assured] did not possess. We think mistake had occurred, since the conthat 'sole ownership' as used in the tract which the insurer had in mind
and issued was different from that car outright, but bought it under a which the assured had in his mind. conditional contract, and that the
Knowledge by insurer's agent, at agent told him that he would get the the time the policy is written, that necessary information for the policy assured shared his title with another, from the dealer who sold the car, but constitutes a waiver of a warranty of failed to do so and misstated the facts, unconditional and sole ownership. the question whether the agent made Automobile Ins. Exch. v. Wilson (Md.) such a statement being for a jury to supra. And see this case under subd. decide. The court reasoned that to VI.
hold otherwise would enable the inIn the Misheloff Case (Conn.) su- surer to perpetrate a fraud upon the pra, it was held that the condition as assured by receiving his money and to sole and unconditional ownership giving him nothing of value in return. was not waived where neither the In the Hessler Case the court held broker nor the agent who negotiated that the clause in the policy providing the sale of the policy made any in- that the local agent could not waive quiry as to the title; also, that the any provision thereof unless in writacceptance and retention of premiums ing was not applicable to a waiver under the policy without knowledge before the policy became effective, but of the defective title did not amount only to a waiver after the issuance of to a waiver, and that the insurer was the policy; and also held that an innot by its conduct estopped to rely surer which, after knowledge of a upon the breach of this condition to forfeiture under a policy, negotiates avoid liability under the policy. with the assured and recognizes the
In Andrews v. Bull Dog Auto F. Ins. policy's validity, will be liable thereCo. (1924) Mo. App. —, 258 S. W. under. 714, it was held that the insurer's de
VI. Description of car. fense of breach of warranty to an action for loss of a car by burglary
(Supplementing annotation in 14 and fire was for the jury, where the
A.L.R. 220; 19 A.L.R. 174; 24 A.L.R. policy originally stated that the car 744; and 30 A.L.R. 666.) was not mortgaged, but the assured
The case of Felakos v. Ætna Ins. Co. claimed to have told the agent about
(1922) N. J. L. -, 119 Atl. 277, a mortgage, and that he did not see set out in the annotation in 30 A.L.R., what the latter wrote in the policy, at page 667, was followed in Silverand where the mortgage note was paid man v. American Eagle Fire Ins. Co. before a rider was attached to the pol- (1924) N. J. L. —, 126 Atl. 468, icy, substituting a corrected descrip- holding that the insurer was not liable tion and increasing the amount of in
for theft of a car where the assured surance.
had represented it to be a 1917 car, In Hessler v. North River Ins. Co. and it was shown to have been sold (1925) 211 App. Div. 595, 207 N. Y. in 1915, the court also holding that the Supp. 529, where the assured sought jury's verdict that the stolen car was reformation of his policy by striking not the same as the one sold in 1915 out the words “No exceptions,” which was against the weight of the eviwere inserted after the sole and un- dence, since it bore the same serial conditional ownership clause, and the number at the time of such sale and substitution therefor of a clause stat- at the time it was found after the ing that he purchased the car under
stealing. a conditional contract of sale and Representations in a policy that the owed an unpaid balance, he was held cost of a car was a certain amount to be entitled to rebut the defense of and that assured was its sole owner breach of warranty as to ownership have been held to be waived by the and of concealment of a material fact, assured's filing with insurer, after it and to recover under the policy for was stolen, a statement indicating that theft, by showing that he told the in- it cost a less amount, together with surer's agent that he did not own the the circumstances that insurer investigated the title, subsequently recov- a secondhand car, which he had purered the stolen car, retained it and chased from another, where he gave also the premium, made an offer of as the factory number one which the settlement, and did not deny liability seller had told him was such. up to the time of suit. Automobile In Boudreau v. Imperial Guarantee Ins. Exch. v. Wilson (1923) 144 Md. & Acci. Ins. Co. (1923] 2 D. L. R. 57, 249, 124 Atl. 876.
Quebec, in view of a Quebec In Andrews v. Bull Dog Auto F. Ins. statute, providing that warranties Co. (1924) Mo. App. 258 S. W. must be true, if affirmative, and that 714, it was held that a jury should otherwise the contract may be andecide, upon conflicting evidence, as nulled, notwithstanding the assured's to whether false statements in refer- good faith, a warranty that a car ence to a car in an application for a was a 1917 model, whereas it was a policy were attributable to the as
1915 model, was held to avoid the polsured or to the insurer's agent, where
icy, notwithstanding the assured the application was made out by the bought it on the representation that latter and stated that the assured
it was a 1917 model. had bought the car new from a manu- But see Western Assur. Co. v. Capfacturer for $2,300, where assured
lan (1924] (Can.) S. C. R. 227,  claimed to have told the agent that 2 D. L. R. 935, holding that where an he had bought it secondhand from an- assured had given a note for part of other for $1,850, and that he did not the price of car, but stated that he see what the agent wrote, and where, · had fully paid for it, this did not conas a result of assured later adding stitute a misdescription nor the supaccessories to the car and requesting pression of a fact material to the risk, more insurance, the insurer attached in view of the fact that there was no to the policy a rider increasing the
mortgage or lien on the car. amount of insurance and describing the car as new.
VII. Proofs of loss; excessive or fraudu.
lent claim. And as to misrepresentation of the cost of a car being ground for avoid- (Supplementing annotation in 14 ing a policy, see Puro v. Franklin F. A.L.R. 220; 19 A.L.R. 174; 24 A.L.R. Ins. Co. (1924) 83 Pa. Super. Ct. 164. 745; and 30 A.L.R. 668.)
In Andrews v. Bull Dog Auto F. Ins. Sufficient proof of loss within thirty Co. (Mo.) supra, the insurer also re- days after discovery of the loss was lied upon the assured erroneously held to have been given where the asstating, in his application, the motor sured gave the agent who wrote the number of the car, which the assured policy a detailed report of the circumexplained to have been due to a typo- stances as to the loss, and efforts graphical error in copying from a reg- made to recover the car, about a istry certificate, and this discrepancy month and a half after the loss ocwas apparently considered by the curred, and then turned over to an court to be material to the risk.
adjuster the formal proof which the The misdescription of a car by giv- agent prepared for him, and where ing a wrong motor number, which, the actual time of the discovery was without the owner's knowledge, has not indicated. Lozier Auto. Exch. been placed on the car and the cor- v. Interstate Casualty Co. (1923) 197 rect number thereon concealed, is not Iowa, 935, 195 N. W. 885. And in a sufficient to render a policy void. case involving the conversion of anGiles v. Citizens' Ins. Co. (1924) 32 other car, apparently under the same Ga. App. 207, 122 S. E. 890.
policy, the proof of loss given under And see Continental Ins. Co. v. similar circumstances to the adjuster, Burns (1924) 144 Md. 429, 125 Atl. who later told assured to make out a 232, holding that there was sufficient new one because the original one evidence to go to the jury on the ques- could not be found, was held suffition whether the assured had given cient. Lozier Auto. Exch. v. Interthe insurer a correct description of state Casualty Co. (1924) 197 Iowa,
1130, 198 N. W. 501. And in the latter the car the assured filed with insurer's case it was held that a provision re- agent a "notice of loss,” giving the quiring the assured to "give the com- facts as to the loss on a blank form pany immediate notice of any event which was furnished to him by the which may be or become the basis of agent, and where insurer accepted the any claim by the assured” did not re- "notice" and failed to demand the quire him to give notice of a default "proof,” but investigated the claim in payment by the conditional vendee, and told assured, in reply to a queswho disappeared with the car.
tion, that he had done all that was A provision in a policy that a fail- required under the policy. ure to make proof of loss within sixty In Springfield F. & M. Ins. Co. v. days will void the policy has been held Booher (1924) 102 Okla. 89, 226 Pac. to have been waived by a subsequent 1028, holding that the filing of the filing of the proof, following which proof of loss was waived, where asthe insurer investigated the loss, re- sured notified insurer's agent of the quested an affidavit of ownership and theft immediately, and where the latpower of attorney, both of which were ter's adjuster then made a searching furnished by the assured, and as the examination and both the agent and result of a conference made an offer the adjuster told assured that he did of settlement, and this notwithstand- not need to do anything further, the ing the insurer's lack of knowledge court said that assured had been until later that the assured had as- “lulled into security," and that insurer signed his claim to another, and in re- . was not deprived of knowledge of a gard to an alleged conspiracy upon the single fact which would have been assured's part to defraud it. Camp- communicated by a formal proof. bell v. National F. Ins. Co. (1924) In Collins v. Phænix Assur. Co. Mo. App. – 269 S. W. 645.
(1924) Mo. App. —, 258 S. W. 732, In Hessler v. North River Ins. Co. where the insurer relied upon the (1925) 211 App. Div. 595, 207 N. Y. renting of a car in violation of the Supp. 529, it was held that, although terms of the policy, to avoid liability a local agent could not, within the thereunder for theft, it was held upon sixty-day period, waive the filing of demurrer that the proof of loss signed the proof of loss within such time, a and sworn to by the assured without special agent having apparent author- reading it, stating that the latter had ity to waive it might do so, the ques- rented the car, was not conclusive as tion whether the proof was waived an admission, but that evidence deny. being for a jury.
ing the renting should be allowed to In Wieson V. Automobile Ins. Co. go to the jury. (1924) · N. J. L. 126 Atl, 652, it The decision of Falls City Plumbing was held that it was for the jury to Supply Co. v. Potomac Ins. Co. (1922) decide whether proof of loss was 193 Ky. 734, 237 S. W. 376, as set out made within the sixty-day period, in the annotation in 19 A.L.R., at page where a witness testified to delivering 174, holding that a requirement as to proof within such time, but the proof giving notice of loss forthwith is satapparently bore a later date. It was isfied by giving it within a reasonable also held that upon appeal the insurer time, and that the question whether could not object to the trial court's the notice is given within a reasonable remark to the jury that there was time is for the jury, unless the lapse proof of waiver of the sixty-day limit, of time is so long as to be obviously where the insurer had not objected to a noncompliance with the contract, the evidence as to such waiver with- was approved in Northwestern Nat. out its having been pleaded.
Ins. Co. v. Cohen (1924) 138 Va, 177, In American Ins. Co. v. Ott (1924) 121 S. E. 507, holding that, where a 101 Okla, 111, 223 Pac. 131, the re- car disappeared on a Saturday night quirement as to proof of loss was held and its loss was not reported until the to have been satisfied or waived, following Monday morning, the queswhere immediately after the theft of tion whether such a requirement as
(1924) Mo. App. —, 269 S. W. 645, supra. VIII. Recovery of car as affecting insur
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 Phenix 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.  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.  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