Councill v. Sun Insurance Office of London

Oeeutt, J., delivered tbe opinion of the Court. This is an appeal from a judgment on a directed verdict for tbe defendant in an action of assumpsit in tbe 'Superior Court of Baltimore City brought by the appellant against tbe appellee. Tbe record presents three exceptions, two of which relate to questions of evidence, and tbe other to the action of tbe lower court in granting a prayer at tbe close of tbe plaintiff’s case instructing tbe jury that the evidence offered by the plaintiff was not legally sufficient to entitle him to recover, and that, therefore, their verdict must be for tbe defendant. Since tbe defendant’s prayer concedes the truth of tbe evidence offered on behalf of the plaintiff, together with such ¹⁴⁰ inferences as may be legitimately drawn therefrom, the facts of the case are, practically speaking', undisputed, and thus dealt- with in substance, they are as follows: On September 2nd, 1920, the appellant bought from the Woods Motor Company a motor car for $2,580, and financed the purchase through the Finance and Guaranty Company.

The appellee had prior to that issued to the Finance and Guaranty Company a policy insuring it against any direct loss or damage occurring through the loss or damage by fire, theft or pilferage of automobiles covered-by it. The object of that policy, it may be- inferred, was to protect the insured against loss through any of the causes covered by it on automobiles which it owned or on which it had a lien or claim, but under its terms it also' inured to the benefit of purchasers of automobiles to whom the Finance and Guaranty Company issued insurance certificates when countersigned by the policy agent of the company. Acting under that authority, that company issued such a certificate of insurance to Dr. Council!, the appellant, for $2,064 on September 2nd, 19-20, covering the motor ear purchased by him on that date. Between the date of its purchase and February 15th, 1921, the appellant drove-the automobile so purchased abo-ut four thousand miles, although it was on the day last mentioned in excellent condition.

On that day he “parked” it at the corner of Baltimore and Calvert Streets in Baltimore City while he went to a nearby drug store, and when he returned he found that it had been stolen. He promptly made an oral report of his loss to the insurance company, and on February 17th, 1921, he was informed by a Mr. Cowan, an adjuster for that company, that it had been recovered, and that he, Cowan, had had it taken to Woods’ garage in Baltimore City, where it then was. When it was recovered the machine was so badly damaged that it was necessary to tow it to the garage, and upon an examination it was found that extensive repairs were necessary to put it in a usable condition. Oouncill inspected the car, but did nothing himself towards having it repaired, and a few days later Cowan approached him again ¹⁴¹ and told him that be (Oowan.) bad received an estimate from a Mr. Woods of the probable cost of tbe needed repairs, but ratber discouraged tbe idea of baying tbe work done by Woods, and suggested that the Auto Mart Company would be better equipped for it.

Councill made no reply to that suggestion, and later Cowan returned and said that be bad received an estimate from tbe Auto Mart Company of $380, later increased to $430, for repairing tbe ear. Councill himself did nothing either in connection with that report, but Oowan, acting apparently for tbe insurance company, employed tbe Auto Mart Company to do tbe work. That he acted for tbe insurance company in doing that is one of the controverted points in tbe case, but assuming tbe truth of all the testimony in the case tending to establish that fact, it- is in our judgment sufficient to warrant the inference that in awarding the contract for repairing tbe ear he was acting for the insurance company. Tbe appellant, if we accept his testimony, bad bad nothing at all to do with awarding any contract for the repair of the car, .nor is there anything in the record to show that he had at any time authorized Cowan to make a contract in his name, so that Cowan either made the contract for himself or for the insurance company, for he certainly had no authority to make it for Councill.

The appellant in his testimony, in referring to Cowan’s acts in connection with the contract for repairs made with the Auto Mart Company, said in part: “Did you have any conversation with Mr. Cowan, the adjuster, with regard to getting estimates or with regard to getting anybody else to repair the car? A. I said to Mr. Cowan when he told me the Auto Mart Company was going to look after my car, I said, ‘Why not get an estimate from the Zell and the P'aek-ard and the Cadillac people ?’ I knew the Zell people; I was next door to them. He said the Auto Mart is all right; every time I get an estimate from these folks they charge me $5.00 or $10.00 for an estimate; the Auto Mart Company is all right; they have done work for me before. Q. What did you tell him with regard to having the car repaired ?

A. [ ¹⁴² did not tell bim anything. Q. In any event, he told you he had given the job to the Auto Mart people? A. That is correct. * * * Q. What did he tell you about getting the Auto Mart to repair your ear, if anything? A. He told me that the Auto Mart were the people to repair my car; he knew what they could do and he had seen them work, and they did painting work and upholstering work and mechanical work right there at their place, and he said he knew they would fix my car up' all right and I need not worry about it at all, that he had given them work before.- Q. In the meantime had you said or done anything to lead anybody to believe the car was taken from the Woods Motor Company at your request- or suggestion?

A. No, sir, * * * Well, after my car had been taken to the Auto Mart by Mr. Cowan or sent there, I went to the Auto Mart to see my car and see what they were going to do- Q. What did you see on this occasion? Do you know whether it was before or after you saw the estimate ? A. After that. Q. Had you seen Mr. Cowan any more in the meantime?

A. I saw him after March 12th. Q. Lid he say anything who was doing the work? A. He had already told me he had given the work to the Auto Mart, the Auto Mart had made an estimate on it and he showed me a bill received from the Auto Mart. Q. Had you made any arrangements yourself with the Auto Mart or with anybody 'with regard to having your car repaired further than what you have testified to as to what Mr. Cowan said to you ?

A. No, sir.” For as much as the proof of loss which the insurance company afterwards submitted to Councill was based upon the contract which Cowan had made with the Auto Mart Company, the insurance company, by that act, and by its payment of the amount named therein, to which we will presently refer, recognized Cowan as its agent authorized to adjust the appellant’s claim against it. After the repair work had been started, Cowan, acting for - the insurance company, wrote to Councill telling him what “the estimated cost of the repairs would be and asking him to •’ submit proofs of loss for that amount, together with the ¹⁴³ expense of towing the car in, which the Woods Motor Company had charged against Cowan. Upon receiving that letter Conncill went to the garage and found that the repairs covered by the estimate would not place the car in good condition, and he also desired to be reimbursed for the loss of the tires which had been damaged when the oar was stolen. The estimate of his loss was then increased to $530, but he hesitated to sign proofs of loss for that .amount because at that time the repairs had not been completed, and before he did sign them the Auto Mart Company’s representatives brought the car to him and asked him for a check for the work done on it, although the repairs were not then completed.

He told them that he had nothing to do with the contract for repairs and they then went with him to see Cowan, who told him that it was true that the Auto Mart Company wanted its money and that he, Oouncill, would have to sign a proof of loss. That later Cowan brought him a proof of loss in which his loss was placed at $530, and he signed it. Some time after he signed it, he was notified that a draft for that .amount had been received by tbe Finance & Guaranty Company, from which he had borrowed tbe money to buy tbe oar and to which he was still indebted, and requested to call at its office and endorse it. At that time, however, the work on the car was not progressing satisfactorily, and the .appellant doubted whether he ought to sign ,fche draft, hut he finally did sign, it under the circumstances described in the following extracts from his testimony: “That he refused to' sign that draft because his car had not been fixed, and that when that letter was written to- come down and sign the draft, he had been down to see Mr. Fisher and taffied to Mr. Cowan and told them he would not sign the draft until his car was fixed.

He had several interviews with them; that he had made a demand on the Auto Mart and had written them a letter, copy of which witness then produced, the same being letter signed by witness dated May 28, 1921. * * * That up to that time his car had not been fixed; that hardly anything had been done. The knock was still in the motor, running>-board had otnei color brown ¹⁴⁴ and the other was green, his fender and his upholstery and his tools, none of these things had been completed, fixed or touched at the date of the letter referred to. * * * That on May 28, 1921, he made a written demand upon the Auto Mart to have his car fixed; that a carbon copy of a letter that he wrote the Finance and Guaranty Company on June 12, 1921, enables him to fix the date of the interview concerning which he and Dr. Detrick had testified as after June 12th. That at the time he signed the draft in evidence, his car had not been fixed. Q. State your recollection of what took place at this interview at which you and Dr. Dietrich and Mr. Cowan and Mr. Fisher were present ?' A. Mr. Fisher said, 'Mr. Cowan, can we not have this thing fixed up for Dr. Oouncill if he signs the draft ?’ he said, 'We can get the car-’ (The Court); Who said that?

A. Mr. Cowan said, 'Yes, if Dr. Oouncill signs the draft we can get the car’; I was kind of dubious about signing the draft, I had not signed it for six weeks before, it had been six weeks since 1 had been notified about the draft- Q. You had not signed the draft? A. No; I started to' talk with Mr. Fisher and he said, 'The only thing you can do * * * is to sign the draft’; so in the presence of Mr. Cowan and Mr. Fisher after this assurance they would get my car from the Auto Mart and fix it up- (The Court) : Who said that? A. In the presence of Mr. Cowan and Mr. Fisher both said if I signed the draft I could get my car. (The Cburt) : Whoi said they would fix the car?

A. Mr. Cowan and Mr. Fisher. Q. Which one said it? A. They were talking there together; Mr. Cowan said it, the only way we can get the ear is for Dr. Counoill to sign the draft, the Auto Mart would not release it- Q. (Mr. Mullen) : Both said it?

A. Both of them, if 1 would sign the draft. Q. What part did Mr. Cowan have in connection with any promise to see that the car was fixed up if he had any connection? A. Mr. Cowan was really the real man who told me, he said, 'The only way t.o get the car you will have to sign the draft before you get the oar,’ and Mr. Fisher said, 'Doctor, that is the only thing you can do, if you sign the draft Mr. Cowan can get the ¹⁴⁵ car’ — be did not say Mr. Cowan — he said, ‘We can get tbe car and bare it fixed up for you then, and tbat is the only way to get tbe ear, tbe Auto Mart will not give it to you.’ ” Tbe Fisher referred to in this testimony appears to have been a policy writing agent of the insurance company and in some undisclosed way to have been connected with the Finance & Guaranty Company, and tbe draft, after Councill bad endorsed it, was left with bim for tbat company and by it endorsed to the Auto Mart Company. Although it had been paid $100 more than its estimate, that company failed to properly repair the machine and CoWan finally took it out of its hands, and employed, Fred S. Orn to complete the repairs.

He did work on it which he valued at $418, and finally sent a bill for that amount to Councill, who refused uo pay it because he bad never employed Orn and had never authorized any one else to employ bim. Orn then sold the car for bis bill, and notified Councill that, after deducting from tbe proceeds of the sale bis repair bill, storage, insurance, and other incidental expenses., together aggregating $589.75, there was a balance of $19.25, which be was ready to pay to Councill or to Cowan on the request of both. Councill, however, declined to accept that amount, but demanded that the insurance company reimburse him for the loss he had sustained through its failure to repair his motor car. That company, however, very courteously hut, very firmly, disclaimed any further responsibility, and in consequence the appellant instituted this suit to recover the loss which he claimed to have sustained through the appellee’s failure to make such repairs.

Briefly re-stated, free from obscuring detail, the essential facts are these: The appellant was insured by the appellee against the loss of his motor car by theft. It was stolen and recovered in a badly damaged condition. The insurance company took