Andrew v. Bankers & Shippers Insurance of New York

NOURSE, P. J.

Plaintiff sued for damages for deceit and had judgment for $14,594. Defendants appeal on typewritten transcripts.

The cause was partly tried at an earlier date when, upon the close of plaintiff’s case, the trial court granted defendants’ motions for nonsuit. On appeal this order was reversed.

(Andrew

v.

Bankers & Shippers Ins. Co.,

101 Cal. App. 566 [281 Pac. 1091].) In the opinion then rendered a full statement of the facts of plaintiff’s case appears to which reference may be had. For the purposes of this

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opinion we may state briefly that plaintiff and the Oakland branch of the Bank of Italy were engaged in lending money on and discounting automobile paper; that defendant Ears-man was the local agent of his co-defendant insurance company; that one Shouse was engaged in buying and selling second-hand automobiles upon which he issued conditional sales contracts. That plaintiff and the local manager of the Bank of Italy agreed with Earsman that he should make a personal inspection of the cars held by Shouse, should issue a policy of insurance upon each car and should attach a rider to each policy certifying that he had made - such inspection and had found the make and number as represented in the policy; that paper covering about two hundred cars was handled in this manner, but that, in the case of eleven cars, Earsman failed to make any inspection, but relied on the word of Shouse. In these instances the numbers inserted in the insurance policies were spurious and no cars corresponding to such numbers were owned or possessed by Shouse. The basis of the action is that Ears-man fraudulently .represented these facts to the plaintiff, and that the plaintiff, relying on these representations, purchased the paper to his injury in the amount sued for. Earsman’s relation as agent of the insurance company is conceded and both defendants appeal on the same briefs.

In our previous opinion we discussed all the points relating to the issue of deceit and held that the evidence tendered by the plaintiff was sufficient to make out his case. When the cause was called for the second trial the plaintiff offered in evidence the complete transcript, of the former proceeding, the defendants offered two depositions of Ears-man and the plaintiff then put on three witnesses for oral testimony in rebuttal. This, with the stipulation of facts and some exhibits offered by agreement, constituted the trial. Upon this evidence the trial court made complete findings covering all the issues. The defendants now argue that we should review this evidence and reach a different conclusion.