Smith v. Massachusetts Bonding & Insurance

STURTEVANT, J.

The plaintiff, as assignee, commenced an action against the defendant to recover a judgment for moneys alleged to be due under an alleged oral contract of insurance. 'The jury returned a verdict in favor of the plaintiff and the defendant has appealed.

Prior to July 26, 1920, B. C. Martin, and M. P. Martin, doing business under the name of Martin Bros., were engaged in operating automobile trucks and trailers in transporting milk from Santa Clara and the adjacent neighborhood to San Francisco. Shortly prior to that date an accident occurred that resulted in an insurance adjustment being made by and through Burdette A. Palmer. On the date last mentioned Mr. Palmer called upon Martin Bros, and held a conversation with M. P. Martin. At the time of holding that conversation, and until after the Swanson accident, which will hereafter be adverted to, it is the uncontradicted evidence that Mr. Palmer was an insurance solicitor and adjuster of insurance for the firm of Goodwin, Klinger & MacKay, and that that firm was the general agent of the Massachusetts Bonding and Insurance Company in the transaction of the automobile department of that company’s business on the Pacific coast. When Mr. Palmer called on Mr. Martin a conversation was had looking toward the taking over of the automobile insurance business of Martin Bros. As he represented indirectly the appellant we shall take the story as testified to by him.

Mr. Palmer testified that he held the conversation with Mr. Martin at San Jose in the presence of Mr. Martin’s sister. “I made the trip down there at the request of Mr. MacKay, a representative of Goodwin, Klinger & MacKay. I went down there on an adjustment of a loss and the soliciting of business. I went down to adjust a loss on a truck which Mr. Martin had and to solicit additional business in the insurance line on the trucks which were not covered. This visit was made in the latter part of July. I adjusted the loss on Mr. Martin’s car and naturally brought up the ques

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tion of full coverage in a collision, as he was not covered in his present policy. His trucks were covered but that is with what is known as a one hundred dollar deductible collision policy and naturally Mr. Martin was very much disappointed. He had to stand $100 of the loss and then I explained to him the features of the full coverage clause. A full coverage clause amounts to this, that in case of a loss he would not have to lose a cent himself but that the company would have to assume the entire liability. This was on his Packard truck, the Reo truck and also two trailers which were operated in conjunction with the two trucks in hauling loads to San Francisco. The trailers were attached to the rear end of the trucks. I solicited full coverage in collisions, features which we decided upon, depending on the rates. I then solicited property damage and public liability, and not having the rate manual with me I telephoned to Mr. Tompkins in San Francisco. Mr. Tompkins is at the counter and is what is called the underwriter of Goodwin, Klinger & MacKay, or the office manager, and he quoted all the rates. Mr. Martin gave me the numbers of the Packard truck and also of the Reo truck. We looked for the numbers on the Trailmobile and on a Reliance trailer. We could not locate any number on them and I came back to San Francisco. He explained how he was using those trucks and those trailers, that they were being worked in conjunction and that he would hook up a trailer on the rear of his truck. He told me the number of gallons of milk that he could carry on the truck and the number of gallons of milk that he could carry on the trailer. I don’t remember which truck was for which trailer, but I believe that Mr. Martin operated two trucks and he had the two trailers and if he would pull off one truck he would use the other one and he would hook it on with either of the trailers, if one of the trailers was undergoing minor repairs. I asked Mr. Martin how many men he carried on these trucks and he told me that there was always two drivers so that in case one man fell asleep the other man would be there to handle it.