Affleck v. Kean , 6 R.I. Dec. 13 ( 1929 )

CARPENTER, J.

All of the above cases were tried together and involve the same cause of action. The jury returned a verdict for the plaintiff for the sum of $568 in each case. On May 14, 1929, the defendant in each case filed a motion for a new trial containing the usual grounds, which motion was submitted to this Court for decision without arguments.

From the evidence of the plaintiff it appeared that William H. Kean, who was the general agent for the Potomac Insurance Company, visited the office of Mrs. Affleck, who ran a trucking business formerly run by her deceased husband, and solicited insurance; that Mr. Kean obtained a list of policies which she held on trucks and automobiles and the time of their expiration. Soon after Mr. Kean’s first visit, the insurance on a Willys-Overland Six automobile expired and Mrs. Affleck advised Mr. Kean that he could have the insurance on this automobile. It appeared from the evidence of the .plaintiff that Mr. Kean looked over the automobile, took the numbers, and upon his request the old policy and registration were shown to him; that he also took notes upon inspection of the car and from the registration and the old policy. Soon afterwards he returned and delivered to Mrs. Affleck a policy issued by the Potomac Insurance Company and the premium was paid; that the policy was not examined by the plaintiff; that at the time of the issuance of the policy Mrs. Affleck owned no other pleasure ear than the one shown to Mr. Kean and that there was no other pleasure car in the garage at the time; that soon after the issuance of the policy, the car was completely destroyed by fire; that Mr. Kean was notified and went to look at the car, and at this time or very soon thereafter it was discovered that the policy which had been delivered to Mrs. Affleck covered a Willys-Knight automobile and not a Willys-Overland Six, and for this reason the car owned by Mrs. Affleck and destroyed by fire was not insured under the policy delivered to her.

For plaintiffs: .Tohn P. Beagan & I. E. Beagan. For defendants: Cooney & Cooney.

The defendant by Ms evidence claimed that he did not look at the car, but issued the policy upon data given to him by Mrs. Affleck, and that all the information that he got as to the car, he received from the plaintiff, Mrs. Affleck.

After the destruction of the car by Are and the refusal of the company to pay the insurance, suit was brought against the insurance company and was tried in this Court and in the Supreme Court, and the Supreme Court held that suit could not be maintained for the loss upon the policy. Thereupon, the plaintiff brought suit against the general agent and the insurance company, bringing suit against each separately, and then against the two jointly, alleging that the insurance company through its agent entered into a contract to insure a Willys-Overland Six car, -and that the policy not having been properly issued, the Potomac Insurance Company and its agent, Mr. Kean, failed to perform their contract to insure a Willys-Overland Six.

Upon the evidence the jury returned a verdict for the plaintiff in each case for the sum of $568 and the Court feels that the jury were justified in returning the verdict that they did, and that substantial justice has been done.

Motion for a new trial in each case denied.