21 P.2d 376 | Kan. | 1933
The opinion of the court was delivered by
This action was brought by B. A. Elliott against the Bankers and Shippers Insurance Company of New York, and J. H. Elliott, to recover upon a policy insuring an automobile against fire and theft. Some time after the insurance was taken the automobile was stolen at Pittsburg, by persons unknown, driven about four miles from that place over an embankment, and there almost totally destroyed by fire. The insurance company refused to pay plaintiff for the loss and damage he had sustained, and the present action was brought and judgment rendered in his favor for $561. The defendant insurance company appeals.
In his petition plaintiff alleged that on January 27, 1928, he purchased a Hudson automobile from the Hanson Motor Company for $1,500 on the deferred-payment plan, and a payment of $600 was made at the time of purchase, leaving the amount of $1,011.36 to be paid, and a note was given covering the balance of the purchase price, which also included an insurance premium of $111.36; that the seller, the Hanson Motor Company, at the time of sale, objected to taking the title note of plaintiff as a part of the purchase price on the ground that he was being threatened with litigation growing out of some building projects, but stated that if the plaintiff’s brother, J. H. Elliott, would sign the note and security for the balance of the purchase price of the automobile and the insurance premium he would close the sale and deliver the automobile to plaintiff; that
The defendant denied that it had any contract with the plaintiff, that his name or interest was not mentioned in the policy, and also denied that it had any knowledge of the position of plaintiff as owner until after the loss occurred, and that the note furnished in the sale transaction was never signed by plaintiff, but only by his brother, J. H. Elliott, who was not the purchaser of the automobile. The defendant, however, admitted that after it was claimed that the automobile was destroyed by fire it paid the National Bond and Investment Company the sum of $379.26, the amount of the unpaid balance due on the note transferred to it, but it did not admit any liability under the policy to the plaintiff.
The reply of the plaintiff was a denial of the averments of the defendant and, also, that defendant is estopped to deny that the Hanson Motor Company was not its agent to collect insurance premiums because it had full knowledge of the facts with reference to plaintiff’s interest by and through its adjuster, while adjusting the loss and arranging for the application of the salvage for the protection of the defendant, and also that it is estopped from denying insurance to plaintiff under the contract for the reason that after the loss it requested the plaintiff by mail and telegram to take possession of the automobile and care for the same until the arrival of the adjuster, in order that the automobile might be salvaged.
The defendant demurred to plaintiff’s petition, which demurrer the court denied, and at the close of plaintiff’s evidence it also entered a demurrer thereto, which was overruled.
Error was 'assigned on instructions numbered three and four given by the court, and also on the admission of evidence, and the overruling of the motion for a new trial.
There is little, if any, dispute as to who was purchaser and owner of the automobile; no dispute that the plaintiff, B. A. Elliott, purchased the automobile at the price named, nor of the payment of $600 as the initial payment by plaintiff out of his own fund's at the time of purchase; no dispute that the seller did riot want to take the title note of plaintiff, and expressed a willingness’to take the note signed by the plaintiff’s brother for the deferred payments,
The insurance was paid for by plaintiff when the sale was made to him, it being included in the note that was given, which he furnished, and that with the accompanying papers was transmitted by the seller to the investment company. When it took out insurance in what is called the master policy for the protection of all interested, including itself, as well as the vendor and purchaser, it necessarily learned that insurance had been taken out on the automobile, through the seller — something he was authorized to do. According to the scheme the first step in the plan of insurance was
It was the intention of all the parties concerned to insure the purchaser of the car. By a mistake the brother of plaintiff was named as purchaser, but the seller, who solicited and took the insurance which was in force from the date of sale, knew that plaintiff was the purchaser, and not J. H. Elliott. The investment company, a Chicago concern, procured and had possession of the policy, and plaintiff did not see it or learn that he and his interest were not protected by the policy until after the loss. It would have been an appropriate remedy for plaintiff to have asked for a reformation of the instrument, but that is not always necessary. If the provisions of the policy interpreted in view of the extrinsic facts show the real intent of the parties, reformation is not essential. (Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533.) In 26 C. J. 107 it is said:
“From the various cases involving the question of necessity for reformation it is possible to deduce the general rule that, if the policy when properly construed in.the light of extrinsic facts has the same meaning it would have if reformed, and sufficiently shows the real agreement of the parties, no reformation is necessary. . . . Reformation is not necessary where the insurer has waived or is estopped to rely upon a breach of a condition in the policy.”
See, also, Insurance Co. v. Saindon, 52 Kan. 486, 35 Pac. 15; Mercantile Co. v. Insurance Co., 101 Kan. 522,168 Pac. 323. Under these authorities and the evidence the contract of insurance may be treated as reformed and the plaintiff may be regarded as the purchaser and entitled to the insurance he had paid for to a party authorized to receive it. It appears that the premium is still retained.
If there was anything lacking in the support of this view it would be cured by the act of the adjuster, the representative of the defendant, who had been sent there to adjust the loss. The various steps which he took towards adjustment after learning of the omis
There is complaint of instructions of the court touching this and related subjects. Instructions numbers three and four follow:
“3. It is to determine these differences and disputes between, the plaintiff and defendant that you have been called into the jury box. If you should believe, from a preponderance of the evidence, in this cause, that the plaintiff was in fact the actual purchaser of the automobile in question from the Hanson Motor Sales Company; that he personally made the initial payment on the automobile; that his brother, J. H. Elliott, for plaintiff’s benefit, executed the note and chattel mortgage in question to the Hanson Motor Sales Company, representing the balance of the purchase price of said automobile, and that said note and mortgage represented and contained a finance .charge for the premium on the insurance contract in question; that the plaintiff personally applied to the Hanson Motor Sales Company for the insurance in question; that it was agreed that the insurance contract was to cover plaintiff’s interest in the automobile in question, as regards loss or damage by fire and theft; that plaintiff personally paid the insurance charges embraced by said note to the Hanson Motor Sales Company, who in turn remitted the same to the National Bond and Investment Company; that the automobile was, at the time claimed by plaintiff, damaged from fire and theft; that plaintiff reported said loss or damage to the National Bond and Investment Company, who in turn notified the defendant, and that the defendant thereupon sent its adjuster to Pittsburg, Kan., to investigate said loss or damage, and to confer with plaintiff with relation thereto, and that said agent conferred with plaintiff in regard to said loss or damage, and that pursuant to said conference, said agent entered into negotiations with plaintiff, with regard to the disposition of the salvage of said automobile; that it was agreed between plaintiff and said adjuster, and said adjuster, pursuant to said negotiations,*499 entered into the control of said salvage and solicited an offer for said salvage, and that the salvage to said automobile was to or could be sold or disposed of for the benefit of the defendant. That then and under such circumstances, if found by you to exist, the defendant would be liable to plaintiff in this action for any loss or damage suffered in consequence of any theft of, or fire to his automobile, provided you should also believe from the evidence and circumstances in this case, that the adjuster of the defendant had either express or apparent or ostensible authority to have entered into negotiations with plaintiff, whereby it was agreed, if at all, that the defendant was to enter into the control of the salvage of said automobile, with power to dispose of the same, and provided still further, that either the defendant or its adjuster had full knowledge of the facts, that the agreement, if any, had been entered into between plaintiff and the seller of the automobile at the time of the sale thereof, whereby for the insurance charge, if any, collected, that the plaintiff’s interest in the automobile was to be insured against fire and theft, and provided you should also believe from the evidence, that said adjuster knew, at the time of negotiating, if at all, with plaintiff for permission to sell the salvage of said automobile, in the interest of the defendant, that the plaintiff was claiming that his interest in said automobile had been insured in the defendant, on account of said negotiations, if any, which were had with the seller and said insurance charge, if any, made by said seller. Of course, if you should believe from the evidence, that each and all of the foregoing facts exist, then the defendant would be deemed to have waived any lack of authority on the part of the seller to have made the insurance contract, if any, with the plaintiff in the first instance, and by having, if at all, entered into the control of said automobile, with the right to dispose of the salvage, the defendant would be deemed to be estopped from claiming that the seller had no authority to have made, if at all, an insurance contract covering defendant’s interest in said automobile. But, if you do not so find, your verdict should be for the defendant.
“4. You are instructed that generally an insurance adjuster is a representative of the company authorized to do any and every act necessary to bring about an adjustment of a loss. As to whether or not the insurance adjuster of the defendant, in this cause, had general or only limited authority as to the claim in controversy is for you to determine under all the facts, evidence and circumstances, in this cause. If his authority was general, then he had authority to deal with the plaintiff with regard to the adjustment of plaintiff’s claim. On the other hand, if the authority of such adjuster was limited to investigating the facts incident to the loss and claim, then he would not have had general authority. You are instructed, however, that if the adjuster of the defendant negotiated, if at all, with the plaintiff, with reference to taking control of and salvaging the automobile to the defendant’s benefit, and that said adjuster had apparent or ostensible authority to have acted in the premises, and that said adjuster failed, if at all, to have made known to plaintiff that his authority was limited, that then and under such circumstances, if found by you to exist, the defendant would be estopped from claiming that its adjuster was not an ordinary or general adjuster.”
Objections to some rulings on the omission of testimony have been examined and found to be without merit.
Finding no error in the record, the judgment is affirmed.