Simons v. Royal Insurance

Piebce, J.

This is an action of contract upon an automobile fire insurance policy. The answer of the defendant is a general denial, concealment or misrepresentation of material facts, and “that the plaintiffs were not the sole and unconditional owners of the automobile referred to in their declaration at the time of the issuance of the policy.” At the close of the plaintiffs’ evidence, a motion by the defendant for a directed verdict was allowed. The case comes before this court upon the exception of the plaintiffs thereto.

It is the contention of the defendant that the motion was rightly allowed, because there was a breach of that warranty clause of the policy which reads: “This entire policy shall be void if the Assured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof”; as also, that warranty clause of the policy which reads: “This entire policy shall be void unless *212 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.”

The automobile was purchased by Manuel Simons on conditional sale of G. H. Phillips and Son, on June 20, 1921. On February 13, 1922, the policy in suit was issued. On that day, and at the time of the alleged loss, an unpaid balance was due under the contract of sale. The material policy provisions are as follows: “Royal Insurance Company of Liverpool. ... In consideration of the Premium Hereinafter Mentioned Does Insure The Assured named herein, and legal representatives, . . . against direct loss or damage ... to the body, machinery and equipment of the automobile described herein ...” The “Name of Assured” is given as “Manuel Simons and George H. Phillips, as their respective interests may appear.” Under the heading “Warranties,” subheading “3. The facts with respect to the purchase of automobile described are as follows:” was the information that the automobile was “Purchased by the Assured” in January, 1922; that it was “Second-hand”; that the “Actual Cost to Assured Including Equipment” was “$1,200”; and under the caption “The automobile described is fully paid for by the Assured and is not Mortgaged or otherwise Encumbered, except as follows: ” were the words “No exceptions.”

It appeared from the testimony of one Russell H. Phillips that he was a son of George H. Phillips, and that he was the person referred to as “Son” in the name G. H. Phillips and Son, wherever that name appeared in the conditional bill of sale which was in'evidence. It further appeared in the same testimony that Russell H. Phillips and his father, George H. Phillips, were partners; that they bought and sold automobiles in the firm-name, and. that the automobile in question was bought by the father and son, as a firm, and sold to Manuel Simons. The other statements of the witness, to the effect that he had no financial interest in the firm and that his father was the actual owner, raised a question of fact for the jury.

The statement in the policy that the .car was purchased *213 by the assured in January, 1922, when in fact it was purchased on June 20, 1921, was a misstatement of fact, which obviously was material to the risk, and under the “Warranties By The Assured” the policy when issued was void.

Exceptions overruled.