Charles Reed, Respondent, v. Saint Paul Fire and Marine Insurance Company, Appellant

Charles Reed, Respondent, v. Saint Paul Fire and Marine Insurance Company, Appellant. Third Department, January 15, 1915. Insurance — automobile insurance — misrepresentation in application for policy. Where a policy of insurance on an automobile provides that it shall be void if the insured has misrepresented any material fact concerning the subject of insurance, his representation that the car was a 1910 model when in fact it was a 1906 model, is a misrepresentation of a material fact and avoids the policy. Lyon, J., dissented. Appeal by the defendant, Saint Paul Fire and Marine Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 22d day of April, 1914, upon a decision of the court, both sides having consented that the jury be discharged. Tipple & Plitt [Wilson E. Tipple of counsel], for the appellant. 'William A. Glenn [Michael D. Reilly of counsel], for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: This action was brought to recover the amount of a policy of $500, issued by the defendant in October, 1912, upon an automobile which was destroyed by fire. The policy contained the following clause: “ This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof.” The statement made to the agents of the defendant, and embodied in the policy, was that the automobile was a No. 877 Premier, forty horse power, four cylinder touring car, built in 1910. In fact it was a twenty-four horse power car, capable of developing twenty-nine horse power, and built in 1906. The misrepresentation that the car was a 1910 model, while it was in fact a 1906 model, was clearly a misrepresentation of a material fact. It is impossible for insurance agents to ascertain the condition of the car from its outside appearance. The condition largely depends upon the wearing of the gears, which are concealed within metal-bound cases. It also largely depends. upon the year of the manufacture, as it is a matter of common knowledge that in the manufacture of automobiles changes are made from year to year to remedy defects that are found to exist, and to add to the conveniences and safety in the use of the car, as are shown to be important through experience. It is matter of common knowledge that in 1912 a 1910 Premier was of a value greatly in excess of that of a 1906 Premier of the same model. So that there was- a clear misrepresentation of a material fact which as matter of .law vitiates the defendant’s contract. The judgment should, therefore, be reversed and a new trial granted. All concurred, except Lyon, J., dissenting. Judgment reversed and new trial granted, with costs to appellant to abide event.