Stone v. American Mutual Auto Insurance

Sharpe, J. On November 30, 1918, defendant issued to plaintiff a policy of insurance protecting him against the loss of an automobile by theft. It is his claim that such automobile was stolen on June 28, 1919, while such policy was in force. He now sues to recover his loss occasioned thereby. The trial court directed a verdict in his favor for $531.90, and defendant appeals. 1. It is claimed that under the proofs the question as to whether the car was in fact stolen from plaintiff should have been submitted to the jury. It appeared that plaintiff was out of the city where he lived and had left the car in charge of Roman Glocheski; that Glocheski had used it on the day in question and parked it near his office and, on his return a few hours after, it was gone. We agree with the trial court that [196] there were no such discrepancies or contradictions in the testimony of these witnesses, or any statements claimed to have been made by them to others as to the loss, as justified the submission of the question to the jury. 2. The policy provided that immediate notice of the loss should be given to the defendant. The car was taken on Saturday, June 28, 1919. The plaintiff returned home the following day, but was not informed of the loss until Monday morning. He testified that he then called up defendant’s representative, Mr. Caldwell, and told him about it and suggested that he should see Glocheski for particulars; that he saw him again later in the week and talked with him about it. Glocheski testified that he informed plaintiff on Monday morning that the car had been stolen and that he advised Mr. Caldwell of the fact on the same day, and that he afterwards saw and talked with him about it. A written statement relative to it was furnished on July 5th. Proof of claim for loss on a blank furnished by defendant was made on July 21st. Mr, Caldwell testified that the first notice he received was a telephone call from Glocheski on July 5th; that, accompanied by Deputy Sheriff Wyman, he went to Glocheski’s office and the written memorandum was then made; that he made investigation thereafter concerning the loss of the car, and that he furnished the blank on which proof of loss was made to Mr. Stone, with a request that he fill it out; that in frequent conversations thereafter he told plaintiff that the company was investigating the loss; that there was no denial of liability for the reason that notice had not been given before suit was brought. We think the trial court was justified in his conclusion that, even if the notice given did not comply with the requirements of the policy, such defense was waived by the subsequent acts of the defendant’s representa [197] tive, whose authority was not questioned. Hohn v. Casualty Co., 115 Mich. 79; Towle v. Insurance Co., 91 Mich. 219, and cases cited. 3. It appeared that after plaintiff’s loss he had assigned his right to recover therefor to Glocheski, but a reassignment had been made to plaintiff before suit was brought. Glocheski was cross-examined as to these transfers and, after stating that plaintiff owed him $800 at the time the transfer was made, he was asked, “Q. What was that for?” To this an objection was interposed and sustained. The reason assigned by counsel for its materiality was, “This witness was very closely associated with the disappearance of this car.” The matter was collateral to the issue presented. We think there was no prejudicial error in the ruling of the court. The judgment is affirmed. Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, J«J., concurred.