Forrest v. Royal Insurance

WEYAND, J., pro tem.

Appellant 0. II. Spurlock on or about October 16, 1923, insured his automobile with the Royal Insurance Company, which said company is also an appellant herein. This insurance was secured by said Spurlock through one Augustine N. Trainor, who was at said time acting as agent of said company at Fairfield, Solano County, California. While this insurance was in force and effect the car of Spurlock was stolen from Spurlock and the same was thereafter found in Oakland, California, in a condition. Appellant Spurlock reported the theft of the machine to the agent Trainor, and Trainor in turn reported the theft to the Royal Insurance Company. requested of Trainor that the repairs that were to put the automobile in the condition it was before the theft be made by Sterling P. Forrest, Jr., the respondent herein. Forrest’s place of business was, however, in the city of Sacramento. Spurlock agreed to tow the automobile to Forrest’s place of business in Sacramento. The insurance company, through Trainor, consented to this and the injured machine was by Spurlock brought to the garage of plaintiff for repairs. In addition to the repairs that were caused by reason of the theft, Spurlock on his own account had some small repairs made and for which he paid on the day of the delivery of the by Forrest to one B. W. McKay, whose connection with the affair will be now stated. According to the policy of insurance it became the obligation of the insuring company to have the ear repaired and placed in as good a condition as it was before the theft. When appellant Spurlock was informed that the machine was fully repaired and ready for delivery he again went to the agent Trainor and Trainor then in

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strueted Spurlock to be in Sacramento at a certain hour next day to meet an adjuster, and Trainor, after a telephonic conversation with the general adjuster of the Royal Insurance Company in San Francisco, gave to Spurlock a slip of paper with the words, “Meet Mr. B. W. McKay, at eleven o’clock, at the Hupmobile Garage, Sacramento,” written thereon. The evidence does not disclose that Spur-lock ever knew or even saw this B. W. McKay, until he went to Sacramento in obedience to the suggestions and directions of Trainor. At the appointed time McKay proceeded to examine the repaired automobile and he also examined the bill of charges. Spurlock then paid for his part of the garage bill and McKay directed the plaintiff to deliver the machine to Spurlock, and stated that he, McKay, would have the insurance company pay to plaintiff the bill for the repairs that became necessary on account of the theft. The automobile was by the plaintiff delivered to the possession of McKay, who drove it out of plaintiff’s garage and delivered it into the hands of Spurlock.