Bell v. Hanover Fire Insurance

BROWN, J. Manifestly, it was error for the court to award judgment bearing interest from the — 518 — date of the issuance of the policies. From the plaintiff’s case, the loss did not occur until March 27,1920. Proof of loss was made at a later date. A valid provision of each policy reads: “This company shall have sixty days after receipt of such sworn itemized statement of claim in which to verify, investigate such claim, and (or) make payment * * .” The defendant Hanover Fire Insurance Company was liable to the plaintiff, if at all, for interest upon the amount due under the terms of the policies from the time they were payable, and not from the date of the policies, nor from the date of the alleged conversion of the trucks: 5 Joyce, Law of Insurance (2 ed.), § 3458. The author there states the rule sustained by ample authority to be that— “The insurer is liable for interest upon the face of the policy from the time it was payable, not from the date of the fire; after the expiration of the stipulated sixty days from proof of the notice, and not from the time the loss is adjusted. If a time is fixed for payment, from that time; * * if the company waives the right to pay within the time fixed by denying all liability under the policy, interest will run from the date of loss.” It is asserted that the interest of the plaintiff in the property is not that of unconditional and sole ownership, and that by reason thereof each policy is null and void. It is claimed that the plaintiff was but the mortgagee of the property; that the only interest that Bell ever had in the trucks was that of such mortgagee; that the property was transferred to him only as security for the sum of $6,500 loaned by him to the Diamond T Truck Sales Agency of Oregon. — 519 — We have set out in the statement the writing evidencing’ their transaction. A well-established principle of law is that— “When an absolute conveyance has been made upon an application for a loan, and an agreement is made to reconvey upon payment of the money advanced, as a general rule the transaction is adjudged to constitute a mortgage. In each case the purpose of the grantor was in the beginning to borrow money; and unless a change be shown in his intentions, it is presumed that any use he may have made of his real estate in connection with it was merely as a pledge to secure a loan. “The parties having originally met upon the footing of borrowing and lending, although a different consideration be recited in the deed, it will be considered a mortgage until it be shown that the parties afterward bargained for the property independently of the loan.” 1 Jones on Mortgages (7 ed.), §266. In the case at bar, the evidence establishes the relation of debtor and creditor, and not that of vendor and vendee. The plaintiff was neither buying nor selling automobile trucks. He was investing his funds in “automobile paper.” However, under the facts as they exist, the policies should not be held null and void on the ground that Seymour H. Bell was not the unconditional and sole owner of the two trucks described in the complaint on file herein. The two insurance policies forming the basis of this action were procured from the defendant on January 17, 1920, and were issued to Diamond T Truck Sales Agency of Oregon, as the assured. Upon the face of the policies, it appears that neither of the automobiles was fully paid for. On the same day a “conditional sales contract endorsement” was — 520 — issued by the defendant Hanover Fire Insurance Company to Frank L. Waller as vendor, and naming the Diamond T Truck Sales Agency of Oregon as vendee. On January 19, 1920, a “conditional sales contract endorsement” was attached to each of the policies, wherein Seymour H. Bell appears as vendor and Diamond T Truck Sales Agency of Oregon, as vendee. The conditions contained in the indorsements are the same, and the language is identical except as to names and dates. The indorsement upon one of the policies to plaintiff reads as follows: “ENDORSEMENT — Attached • to and forming part of Policy No. - issued by Hanover Fire Insurance Company to - Diamond T Truck Sales Agency of Oregon. “It is understood that the automobile described in this policy has been delivered by the said Seymour H. Bell, vendor, to Diamond T Truck Sales Agency of Oregon, vendee, under a conditional sale contract under which the unpaid balance is $-, a copy of which shall be furnished to the company by the said vendor on demand. “In consideration of Two and no-100 included in premium dollars ($2.00) additional premium, this company, subject to all the terms and conditions stated herein, and subject to all the terms and conditions of said policy (in so far as same do not conflict with the specific undertaking and conditions of this endorsement) also insures the said vendor against all direct loss or damage which he may sustain caused by the fraudulent concealment or disposal of said automobile by the vendee, not exceeding the amount named in said policy nor the actual cash value of the said automobile at the time of the said concealment or disposal, nor exceeding two-thirds of the contract purchase price thereof, and in no event to exceed the amount of the unpaid installments of the purchase price of said automobile, exclusive of — 521 — any interest thereon after default in the punctual payment of any thereof. “Provided, however, that upon claim being made to this company for loss under this endorsement, the said vendor shall procure a warrant for the arrest of said vendee on a charge of larceny or embezzlement of said automobile, and shall render such assistance (not pecuniary) as may be required by this company in the prosecution of such charge. It shall also be the duty of said vendor in such case to make every reasonable effort to locate said automobile and, if located, to immediately take possession thereof, or upon the request of this company to institute legal proceedings to recover possession thereof. “Provided, further, that the vendor shall, upon becoming aware of any act or omission on the part of the vendee which may be made the basis of a claim hereunder, forthwith give written notiee to this company, either by registered mail or by telegram addressed to this company at its offices in the city of San Francisco, and the vendor shall, within ten days after the giving of such notice, file with this company, signed and sworn statement showing items and dates of all amounts due from the vendee and setting forth all facts known by the vendor or believed by the vendor to exist concerning such act or omission on the part of the vendee, the dates thereof, the physical condition and actual cash value of such automobile at the time of such disposal or concealment, and the last known address of the vendee. This company shall have sixty days after receipt of such sworn itemized statement of claim in which to verify, investigate such claim, and (or) make payment, during which time no legal proceedings shall be brought against this company; and that upon the payment of any loss hereunder, the vendee shall assign and deliver to this company any and all conditional sale contracts, notes, mortgages or lease contracts covering the automobile which may be the subject of such claim, and this company shall be subrogated to all of the rights of the vendor thereunder. — 522 — “Any .settlement made by or for the vendor, with or on account of the vendee, for any loss claimed under this indorsement, without the written consent of this company, shall render this indorsement null and void. “It is warranted that the vendor has had no notice or knowledge that the vendee is unreliable, dishonest, or unworthy of confidence. “Any provisions of the policy to the contrary notwithstanding, it is understood that the premium provided for in this indorsement is a minimum charge to be retained in full by the company, without regard to the length of time the insurance has been in force, except that when cancelled by this company it shall retain only the pro raía premium. “All other conditions, stipulations, warranties, and clauses of the policy remain unchanged.” In the case at bar, the face of the policies showed that others than plaintiff had an interest in the ownership of each truck. From the indorsements attached to and made a part of each policy, the insurance company knew that plaintiff was not the sole and unconditional owner of the trucks. Hence, it is not in a position to invoke a forfeiture. The most serious question presented by the record lies in the rejection of certain testimony proffered upon the part of the defendant. It claimed that the plaintiff had been imposed upon by misrepresentations made by the manager of the corporation concerning the ownership of the cars described in the record. The defendant asserts that one of the trucks had never been west of Chicago, and that the other had been shipped to, and was owned in, the State of Washington. In this case there has been no attempt to establish any mistake, mutual or otherwise, relating to a misdescription of the insured property. — 523 — The plaintiff alleged that he was the owner of two certain trucks which he described in his complaint as “Diamond T Truck 3% Ton, 1920 Model, Factory Number 5131, Model L B 4,” and “Diamond T Truck 2 Ton, 1920 Model, Factory Number 8078, Model Gr 3,” and that it was these two trucks that were covered by the defendant in its insurance policies which are the basis of this action. The defendant took issue and denied that these trucks were ever owned by the plaintiff, the corporation, or Waller; or that any of them ever possessed the trucks described in the complaint. The plaintiff offered some testimony tending to show that the particular trucks described in the complaint were in possession of the Diamond T Truck Sales Agency of Oregon. The defendant adduced evidence tending to show that the corporation never owned the two trucks described in the insurance policies and in the complaint; that such trucks were never in the State of Oregon and certainly were never owned by Junge or his corporation. It is averred that on March 27, 1920, and the evidence shows that upon that date, trucks in possession of the Diamond T Truck Sales Agency were removed from the garage where they had been kept. By process of elimination, the defendant attempted to prove, by accounting for all of the trucks that had come into the possession of the Diamond T Truck Sales Agency, that at no time did it possess or own the trucks described in the complaint. The ownership and possession of these two trucks was an issue in this case, and the rejection of the testimony constitutes reversible error. It is so ordered. Reversed. McBride, C. J., and Bean and McCourt, JJ., concur. — 524 — Objections to cost bill overruled May 15, 1923. On Objections to Cost Bill. (215 Pac. 171.) Mr. Maurice W. Seitz and Mr. Leon W. Behrman, for the objections. Messrs. Veazie & Veazie, contra. PER CURIAM. The following objections have been made to certain items designated in the cost bill filed by the prevailing party to this action at law: “Comes now the respondent, Seymour H. Bell, and objects to the cost bill filed herein, for the following reasons: “1. The item of $130.72, for an appeal bond, is not properly taxable in this court, if taxable at all. “2. That the item of $81.50 for transcript of testimony is not taxable in this court.” Paragraph 5, Section 25-a, Chapter 203, G-eneral Laws of Oregon, 1917, codified as subdivision 5, Section 6438, Or. L., reads: “In all actions and proceedings a party entitled to recover disbursements therein shall be allowed and may tax and recover such sum paid a person or company for executing any bond, recognizance, undertaking, stipulation, or other obligation therein, not exceeding, however, one per cent on the amount of such bond, recognizance, undertaking, stipulation or other obligation during each year the same has been in force.” Now, as regards the charge for transcript of testimony: It is provided by Section 931, Oregon Laws, that the fees of the official reporter for making the transcript of the evidence “shall be fifteen cents per — 525 — folio of one hundred words, and shall be paid forthwith by the parties or party for whose benefit the same is ordered, and, when paid, shall be taxed as other costs in the case.” It is enacted by Chapter 322, General Laws of Oregon, 1921, that— “When costs are allowed to the.prevailing party on appeal to the supreme court, the appearance fees, trial fees, attorney fees, as provided by law; the necessary expenses of transcript or abstract, as the law or rules require; the printing required by rule of the court, and the transcript of testimony or other proceedings, when necessarily forming part of the record on appeal, shall be taxed in the supreme court as costs of the appeal.” It follows that the objections made to the cost bill must be, and are, overruled: See In re Will of Pittock, 102 Or. 196 (199 Pac. 633, 202 Pac. 216, 17 A. L. R. 218); Couch v. Scandinavian-American Bank et al., 103 Or. 66 (197 Pac. 284, 202 Pac. 558, 203 Pac. 891); Livesley et al. v. Strauss, 104 Or. 356 (207 Pac. 1095); Fischer v. Bayer, 108 Or. 311 (211 Pac. 162). Objections to Cost Bill Overruled.