* Corpus Juris-Cyc. References: Motor Vehicles, 28 Cyc, p. 50, n. 59 New. Curtis C. Knight, appellant, took an insurance policy in the Hartford Fire Insurance Company upon an automobile, which was burned by fire within the period of the life of the insurance policy. The policy was for the amount of five hundred dollars, and a copy of the policy was made an exhibit to the declaration. The defendant filed the general issue and two special pleas. The first special plea alleged that by the terms of the contract sued on there is a warranty therein which is as follows:
"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any *Page 386 material fact or circumstance concerning this insurance or the subject thereof."
The plea set up that the policy was breached because it was represented in the policy that the automobile cost seven hundred thirty dollars, whereas in fact it only cost one hundred seventy-five dollars. To this special plea issue in short was taken by consent signed by attorneys for both sides. The second special plea alleged that the plaintiff represented that the value of the car was seven hundred thirty dollars, when as a matter of fact he had only paid one hundred seventy-five dollars therefor, and that there was a warranty in the policy which provided that the policy would be void in case of any false representations of a material fact or circumstance concerning the insurance or the subject thereof, and tendered back the premium of nineteen dollars and twenty-five cents, to which plea issue in short was taken signed by attorneys for both parties.
The statement of the application, contained in the exhibit to the declaration as part of the policy, had the following among other things:
"(3) The facts with respect to the purchase of automobile described as follows: Month, June. Year, 1924. New or secondhand, Secondhand. Actual cost, seven hundred thirty dollars. Fully paid for."
The plaintiff testified that he bought the car originally as a secondhand car for one hundred seventy-five dollars, and that he had it repaired and parts replaced in a number of particulars. The first bill for replacing parts and repairing car amounted to between three hundred dollars and three hundred fifty dollars, and included repair work in the transmission, a rim, and overhauling the engine, also another garage bill for seventy-five dollars or one hundred dollars, another one for twenty-six dollars, and one for seven dollars and fifty cents, a bill for forty-five dollars for a new top, and a set of tires at one hundred twenty-five dollars. The plaintiff alleged that, counting in the cost of replacements and repairs, the automobile cost about seven hundred fifty dollars in all, *Page 387 and was worth from eight hundred fifty dollars to one thousand dollars. He further stated, in the absence of the jury, that the agent who insured the automobile and delivered the insurance policy to plaintiff saw the car and placed his own value thereon, and tried to insure it for as much as one thousand dollars, but that plaintiff's father thought the rate was too high, and that five hundred dollars was enough insurance to take out; that the agent saw the car, inspected it, and placed his own value thereon; that plaintiff made no representations other than to sign the application made out by the agent.
At the conclusion of the plaintiff's evidence the court excluded the statements testified to as to the agent's inspection of the car and valuation thereon, and granted defendant a peremptory instruction and entered judgment dismissing the suit. This case turns upon the construction of the words "actual cost, seven hundred thirty dollars," above set out.
We think it was error to grant a peremptory instruction from the testimony in the record. The policy did not use the words "original cost," or the purchase price, to the plaintiff, but used the words "actual cost." As we understand, it was the purpose of this inquiry and representation to prevent overinsurance of this automobile, and, as the testimony introduced showed that the total amount of the cost of the car, including repairs and replacements of parts, was equal to the amount stipulated for, and that the car was actually worth more than that amount, there was no fraudulent representation. What the insurance company was obtaining was not the price or value of the car at the time it was bought, but the cost and value of the car at the time the policy was issued.
Taking plaintiff's evidence as being true in connection with the statements contained in the exhibit to the declaration, there was no fraudulent misrepresentation, and consequently the policy was not avoided. Of course the defendant could have disputed the plaintiff's testimony and made an issue for the jury, or it may have shaped its application to show the cost or value, or both, at the time *Page 388 of purchase by the plaintiff, instead of at the time of the taking out of the policy of insurance.
We also think, on the issue of fraud involved, that the testimony as to what the agent saw and did at the time of writing this policy was material, he being a general agent, and not merely one to forward the policy for approval at the home office.
The judgment will therefore be reversed and the case remanded for a new trial.
Reversed and remanded.