Wyman v. Security Insurance Co.

CURTIS, J.

Action by plaintiffs to recover for loss by fire of an automobile truck under a policy of insurance issued by the defendant. The court found that the plaintiff Union National Bank of San Diego was the owner of a chattel mortgage on said truck given to secure the payment of a promissory note for $1,500 and interest executed by the plaintiff O. J. Wyman. It further found that the defendant on April 8, 1924, had issued its policy of insurance, insuring said truck against loss by fire for the period of one year from said date in consideration of the payment by plaintiff Wyman to defendant of the regular premium of $124.24; that said truck had been destroyed by fire on April 23, 1924, and that its value was 12,500 at the time it was destroyed. It further found that Wyman on January 1, 1924, had entered into a verbal agreement to sell said truck for the sum of $3,000 to J. R. Davee, who had paid to Wyman the sum of $100 and had agreed to assume or pay the chattel mortgage thereon. By the terms of this agree

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ment of said Wyman retained the title to said truck until final payment of the purchase price, but Davee was given the possession thereof, and was in possession of said truck at the time it was destroyed. The court also found that the original motor number of said truck was 8863, and that said truck was described in said policy by said number, but that prior to the date of said policy and in the month of September, 1923, Wyman had removed the motor block bearing said number from said truck and substituted a motor block with the number 88191; that said motor number 8863 was removed in order that it might be repaired, and the motor number 88191 was substituted to be used until the repair of the original motor block; that it remained in said truck from the date of its substitution until the truck was destroyed by fire; that the substitution of said number by Wyman was not made for the purpose of deceiving or defrauding defendant nor was the number 8863 given by Wyman to the insurance company at the time of the issuance of said policy given for the purpose of deceiving or defrauding said insurance company.

From the findings of fact the plaintiffs are entitled to a judgment in their favor, unless the facts found by the court relative to the ownership of said truck at the time of the issuance of said policy of insurance, or the facts found regarding the substitution of the number 88191 for the number 8863 on the motor block of the engine of said truck are sufficient to defeat a recovery on their part.