Penta v. Home Fire & Marine Insurance Co. of California

| Mass. | Apr 4, 1928

Wait, J.

This is an action , upon a policy of insurance against loss by fire or theft in connection with an automobile.

The policy recited that “This entire policy shall be void unless otherwise provided by agreement in writing added hereto; (a) If the interest of the Assured in the subject of this insurance be other than unconditional and sole ownership . . . .” There was no dispute that at the date of the policy the title to the automobile was in the Reed Motor Car Company from which the plaintiff had purchased it. under a-contract of conditional sale. There was no provision in the policy providing for such ownership. The policy, therefore, was void. The ruling that it had never attached was correct, and the verdict for the defendant was ordered properly. Ballard v. Globe & Rutgers Fire Ins. Co. of New York, 237 Mass. 34" court="Mass." date_filed="1921-01-05" href="https://app.midpage.ai/document/ballard-v-globe--rutgers-fire-insurance-6435258?utm_source=webapp" opinion_id="6435258">237 Mass. 34. Harvey v. Pawtucket Mutual Fire Ins. Co. 250 Mass. 164" court="Mass." date_filed="1924-10-18" href="https://app.midpage.ai/document/harvey-v-pawtucket-mutual-fire-insurance-6436779?utm_source=webapp" opinion_id="6436779">250 Mass. 164. Gormley v. Westchester Fire Ins. Co. 256 Mass. 221" court="Mass." date_filed="1926-05-29" href="https://app.midpage.ai/document/gormley-v-westchester-fire-insurance-6437570?utm_source=webapp" opinion_id="6437570">256 Mass. 221.

In Simpionbato v. Royal Ins. Co. Ltd. 253 Mass. 606" court="Mass." date_filed="1925-11-24" href="https://app.midpage.ai/document/simpionbato-v-royal-insurance-6437248?utm_source=webapp" opinion_id="6437248">253 Mass. 606, relied on by the plaintiff, the policy disclosed on its face that the title of the plaintiff was conditional.

The plaintiff excepted to the exclusion of evidence that he told the agent of the defendant with whom he dealt in obtaining the policy that he had purchased the automobile under a contract of conditional sale and still had four notes to pay before he would become absolute owner. The ruling was right. The written contract could not, thus, be contradicted or varied. Odiorne v. New England Mutual Marine Ins. Co. 101 Mass. 551" court="Mass." date_filed="1869-03-15" href="https://app.midpage.ai/document/odiorne-v-new-england-mutual-marine-insurance-6415707?utm_source=webapp" opinion_id="6415707">101 Mass. 551. Kyle v. Commercial Union Assurance Co. 144 Mass. 43" court="Mass." date_filed="1887-02-24" href="https://app.midpage.ai/document/kyte-v-commercial-union-assurance-co-6422366?utm_source=webapp" opinion_id="6422366">144 Mass. 43.

The fact that among the “Warranties” there appeared “3. The facts with respect to the purchase of the automobile described are as follows: . . . The Automobile described is fully paid for by the Assured and is not Mortgaged or otherwise Encumbered; except as follows: Part cash balance in 4 $100 notes,” does not render the testimony admissible. The concluding words are consistent with title in a purchaser who still owes part of the purchase price. Such testimony would be admissible if an issue of good faith or intent to deceive were involved; but here the issue is simply one of title. The evidence was not material. There was not an unconditional and sole ownership and, in such circumstances, the policy was void.

There is no force in the plaintiff’s contention that nothing in the document delivered as a policy has binding effect except the words preceding the signatures on the first sheet. It is manifest that the many provisions printed upon the second sheet are part of the contract authenticated by the signatures. He has himself so treated them in giving the notices there called for and not elsewhere stated in the policy.

The case is before us upon a report of the judge and, in accord with its terms, as no error appears, the order must be

Judgment for defendant.