22 P.2d 582 | Cal. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *285 The plaintiff sued to recover on a fire insurance policy. The trial court made findings in favor of the defendants and from the judgment entered thereon the plaintiffs have appealed. In some instances the court found certain paragraphs of the complaint to be true. Incorporating such paragraphs, in effect the findings were as follows:
"That at the time of the formation of said corporation there was issued by it a total of 16,508 shares of said 25,000 shares for and in consideration of the sale, assignment and transfer to it by the plaintiff, D. Strauss, of the good will and all the property and assets of the business in which he then was and for a long time prior thereto had been engaged of buying, selling, manufacturing and generally dealing in and with wood and paper boxes and excelsior.
"That of said 16,508 shares of the capital stock of said corporation so issued and delivered by it as aforesaid, 16,506 shares thereof were, at the special instance and request of the said plaintiff, D. Strauss, issued and delivered to him, one share thereof, at his special instance and request, delivered to the plaintiff Leon Strauss, and one share thereof, at his special instance and request issued and delivered to the said plaintiff W.B. Jefferson. *286
"That the one share of the capital stock so issued and delivered to the plaintiff Leon Strauss as aforesaid, and the one share of said capital stock so issued and delivered to the plaintiff W.B. Jefferson, as aforesaid, were issued and delivered to them respectively to enable the said plaintiff D. Strauss to complete the organization of said corporation, and to enable the said Leon Strauss and the said W.B. Jefferson to qualify as directors of said corporation, and for no other purpose.
"That at all times herein stated the defendant, Dubuque Fire Marine Insurance Company, was and now is a corporation organized and existing under and by virtue of the laws of the State of Iowa for the purpose of transacting a general insurance business, and at all of said times was and now is entitled to transact and transacting a general insurance business in the State of California by virtue of the laws of said state, with its principal place of business on the Pacific Coast in the City and County of San Francisco, State of California.
"That at all of said times the defendant, National Reserve Insurance Company of Illinois, was and now is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois for the purpose of transacting a general insurance business, and at all of said times was and now is entitled to transact and transacting a general insurance business in the State of California, under and by virtue of the laws of said state, with its principal place of business on the Pacific Coast in the City and County of San Francisco, State of California.
"That at all the times herein referred to the defendants above named in the transaction of their said business and with authority of the Insurance Commission of the State of California, have issued and are still continuing to issue policies of fire insurance under and by the name of The Reserve Underwriters, each of which policies is known and designated as `The Reserve Underwriters Fire Insurance Policy Issued by Dubuque Fire Marine Insurance Company, Dubuque, Iowa, and National Reserve Insurance Company of Illinois'.
"That there never was any corporation by the name of `D. Strauss and Leon Strauss and W.B. Jefferson', but there was and still is a corporation by the name of `Allied Box Excelsior Company', and said Allied Box Excelsior Company was the owner of the property insured in the aforesaid policy of insurance, and said D. Strauss was the sole stockholder in said corporation of Allied Box Excelsior Company, excepting qualifying shares held by the directors.
"It is not a fact that at the time of the fire the policy of insurance issued by said defendants was in full force and effect, or in full or any force or effect, the fact being that prior to the fire said policy was canceled, and a policy in the Merchants Fire Assurance Corporation for the sum of $3,000 substituted in lieu thereof on the 1st day of April, 1931.
The plaintiffs claim that many different findings are not sustained by the evidence. They assert that the defendants herein intended to and did insure said plaintiffs by the policy of insurance which is the subject of this action against loss or damage by fire to the property in said policy described in a sum not exceeding $3,000 for the period of one year from and after the twenty-first day of February, 1932. As to what the defendants intended was not made an issue and neither is there a finding. As to the identity of owner intended to be insured the policy named "D. Strauss and L. Strauss and W.B. Jefferson, a corporation". There was no allegation of mistake and there is no finding of such an issue.
[1] The plaintiffs assert that at the time of the issuance and delivery to them of the policy which is the subject of this action, and at the time of the fire, they were the unconditional and sole owners of the property in said policy described within the meaning of the terms thereof. The trial court found that Allied Box Excelsior Company was the sole owner. On that finding there was not even a conflict in the evidence. The assertion made by the plaintiffs is their conclusion of law based on the ownership of the capital stock. In making the above assertion the plaintiffs claim the right to ignore the corporate entity. However, there was no evidence and there is no finding supporting the plaintiffs in this position. It is settled law in this state that the corporate entity may be disregarded when to do so is necessary to avoid fraud or injustice. (Minifie v. *292 Rowley,
[2] The plaintiffs assert that they were not guilty of any concealment of any kind or character in procuring the policy here involved or otherwise. The most that can be said is that there is a possible conflict in the evidence. The correct name of the owner, "Allied Box Excelsior Company", would have shown that at 650 Brannan Street the business conducted had something to do with excelsior. The trial court found that the defendants would not have entertained an application to insure excelsior. When the plaintiffs applied for insurance in the name of "D. Strauss and Leon Strauss and W.B. Jefferson, a corporation" they falsely named a corporation that in fact does not exist and they suppressed the true name which, if it had been stated, would have resulted in their application being refused. Said act was at least some evidence of concealment. It is concealment to neglect to communicate that which a party knows and ought to communicate. One certainly knows his own name. These plaintiffs did not state their name. The name they did state was both a concealment and a material misrepresentation. (McCormick v. Springfield F. M.I. Co.,
[3] Again, it is asserted that the premium on the policy was fully paid by plaintiffs within the time allowed to them for the payment thereof by the defendants. A more exact expression would be that the plaintiffs tendered the premium. After the fire occurred they called on the defendants and gave notice of the loss. They were at once told that they had no insurance in the defendant companies. Thereupon they left and consulted counsel who caused a certified check to be forwarded. That check was never cashed. The trial court found that defendants hold it for whom it may concern.
[4] It is next asserted that the policy issued by the defendants was never canceled. If the plaintiffs mean that the policy was never indorsed in ink "canceled" then their contention conforms to the facts. However, an insurance policy is in effect canceled when another policy is substituted for it. (Stevenson
v. Sun Ins. Office,
It is again asserted that the policy was in full force and effect at the time of the fire. As we have just seen in discussing the previous point that the finding of substitution must stand, it follows that the policy was not in force or effect at the time of the fire.
In their next point the plaintiffs assert that their loss exceeded the total of all insurance they had covering the property described in the policy. There was some evidence that the total loss was $11,989.31; however, the plaintiffs tendered the evidence that that figure was incorrect and that the total loss was $8,850.75, and the latter sum was adopted by the trial court in making its findings. Not including the policy sued on the insurance collected was $6,245.80. From those figures it appears that the loss exceeded the insurance $2,604.95. Confining ourselves to those figures the statement made by the plaintiffs is correct. If by their point they mean to include the policy in suit, then their statement is neither sustained by the findings nor by the evidence.
[5] It is next asserted that the plaintiffs have done and performed all things by them to be done and performed. The trial court made a finding to the contrary. Under the terms of the policy the plaintiffs in the event of a loss were bound to return proofs of loss that were true and correct. They did not do so. Their proofs of loss were made in the name of D. Strauss and Leon Strauss and W.B. Jefferson, a corporation. Each of those individuals executed an affidavit in the name of such claimant. Among other things the affidavit recited "Interest of Insured sole owner". As shown above that was a false statement and not a true statement. Pursuant to a provision contained in the policy D. Strauss was called and examined by the company. He appeared accompanied by his attorney and testified under oath. As to several matters the defendants claim he testified falsely. The plaintiffs claim that he made innocent mistakes. The trial court made a finding against the plaintiffs. That finding may not be disturbed. *294
In this same connection the plaintiffs claim that they were not guilty of any false swearing within the meaning of their policy. As shown above that argument might properly be addressed to the trial court but under the facts it has no standing in a court of review.
[6] Again, it is asserted that the plaintiffs did not do business under and by a fictitious name, but did do business solely and only under the name of Allied Box Excelsior Company. If the latter portion of that contention is sound then the plaintiffs fraudulently imposed on the defendants in taking out insurance in the name of a corporation that did not exist and failing to give the correct name of the owner. If by their contention it is claimed that the plaintiffs did not violate Civil Code, section 2466, the claim is immaterial, because as we have shown above, the findings that were fully supported by the evidence sustain the judgment and the finding under attack is immaterial.
[7] The plaintiffs call attention to the mailing of the check, its retention by the defendants, and the examination of the plaintiffs on the request of the defendants. Thereupon they assert that the defendants are estopped from making any defense. Regarding the examination of the plaintiffs under oath that subject is covered by the language of the policy, which distinctly provides that the procedure mentioned will not constitute a waiver. Regarding the transmission and retention of the check, it will be remembered that those incidents occurred after the fire. They did not create a waiver nor an estoppel. (McCormick v. Orient Ins. Co.,
[8] When D. Strauss was on the stand as a witness the defendants asked, "Q. And that corporation owned the property that was destroyed in the fire, didn't it? Mr. Miller: I object to that as calling for the conclusion of the witness. The Court: I am going to allow the question. A. Yes." The ruling was clearly correct. (Nolan v. Nolan,
[10] The plaintiffs claim that certain issues were made by the pleadings but on which no finding was made. We have examined each one with care. If a finding in favor of the plaintiffs had been made on each of such issues, such findings would be immaterial. It follows that it was not error to fail to make findings thereon. (20 Cal. Jur. 127.)
The judgment is affirmed.
Nourse, P.J., and Spence, J., concurred.