Krienke v. Founders' Insurance

BARNARD, P. J. In this action on an insurance policy, the jury returned a verdict for the plaintiff and the defendant has appealed from the judgment.

The plaintiff was the owner of the fishing boat “Little Albert,” which was moored near the civic center in San Diego. On January 18, he entered into an agreement with one A1 Koritz which was entitled “Option to purchase boat—Little Albert.” It was then stated that “this option” was made on that day between these parties; that Koritz agrees to purchase the boat for $5,250, payable $200 “upon the signing of this option,” $1,200 on February 15, 1951, at which time Koritz was to receive a bill of sale and give back a preferred mortgage for $3,850, payable in monthly payments; that Koritz agreed to insure the boat on February 15, 1951, in the amount of the unpaid balance, with the insurance payable to the plaintiff to the extent of the balance due; that Koritz is to have possession of the boat “upon the signing of this Option, in order to make repairs, replacements and to remodel said Boat”; and that Koritz is not to take or permit the boat to be taken from San Diego Harbor “before this Option is perfected on February 15, 1951.” The agreement refers to an ‘‘ option ’ ’ in six places.

On January 19, 1951, the defendant placed a “30-day binder” on the boat reinstating a previous policy covering described perils, including a loss from “Thieves” and “Barratry of the Master and Mariners, and of all other Perils, Losses and Misfortunes that have or shall come to the Hurt, Detriment or Damage of the said ship, &c, or any part thereof.” The original policy contained a warranty that the boat should be “Laid up and out of Commission” within the harbor; and a clause providing that the insurance should terminate if the boat started to leave that port.

A door to a cabin on the boat, giving the only access to the engine room and other equipment on the boat, was kept locked and the plaintiff retained the key. On January 21, 1951, a Mr. Nash was hired by one Collins to tow the boat to another location in San Diego Harbor, some 4 miles away. Nash testified that when he arrived at the location of the Little Albert he was introduced by Collins to a man who was there “as Koritz, the new owner of the boat”; that he had no [531]conversation with that man and no conversation with Collins which that man could hear; that when he arrived there the boat door of the Little Albert was open, and he did not notice whether or not it had been forced open; that Collins told him where he wanted the boat taken and he took it to that place; that when they arrived the same man was waiting there; that Collins then gave him an army radio, an anchor and a compass as compensation for moving the boat; that this man, who had been introduced as Koritz, was watching the procedure but did not go on board the boat; that he had never met this'man before; that in March, 1952, he saw that same man again in an office in a bank building in San Diego; and that he saw the name “Koritz” on the directory at the entrance to this building.