Shnell v. Globe Indemnity Co.

YORK, P. J. Appellant herein, the "named insured" in a policy of automobile liability insurance issued by respondent brought the instant action to recover the expense incurred by him in defending a suit for damages arising out of an auto[705]mobile accident as well as the amount of a judgment rendered against him in such suit. At the conclusion of the trial, the court directed the jury to return a verdict for respondent. From the judgment entered pursuant thereto, this appeal is prosecuted.

Viewing the facts in the light most favorable to appellant, it appears that on January 8, 1936, appellant visited the office of Mr. Evans, an agent of Fidelity and Casualty Company of New York and the Niagara Fire Insurance Company of New York, and ordered a policy of insurance upon a Ford automobile, as well as upon a Packard automobile owned by him. About January 15th, the policies were prepared and forwarded to the agent, Mr. Evans, for delivery to appellant, but before delivery had been made, the insurance companies on or about February 26th, notified Mr. Evans that they would require on both policies, and also on a policy previously issued covering an Oldsmobile owned by appellant’s daughter, endorsements suspending coverage whenever such automobiles should be operated by appellant’s son, Rex Shnell. Upon being informed of this action by the companies, appellant agreed to such endorsement as to the Oldsmobile and the Packard, but declined the Ford policy on such terms. The Ford policy, was never delivered to appellant, but was returned by the agent to the companies and marked “cancelled”. No premium was ever collected therefor, nor was the policy ever countersigned by the agent.

On March 21,1936, appellant visited the Santa Monica office of E. Broox Randall & Sons, Inc., a general agent of respondent Globe Indemnity Company, and discussed the subject of insurance upon the Ford automobile with Henry T. Brantly, a “soliciting agent” of respondent company.

For the purposes of this appeal, based as it is on a directed verdict, it must be assumed that appellant (as he testified) made a full disclosure to Mr. Brantly of the facts concerning his previous application to the Fidelity and Niagara companies, and their refusal to insure appellant’s ears while they were being operated by his son Rex. At any rate, the outcome of this conversation was that Mr. Brantly filled out and appellant signed an application for insurance to become effective at noon of that day, the pertinent portion of such application being as follows: