McCullough v. Hartford Fire Ins. Co.

• Citation: 2 Pa.Super. 233
• Decision Date: 16 July 1896
• Docket Number: 14-1896
• Parties: E. M. McCullough v. The Hartford Fire Insurance Company, of Hartford, Conn., Appellant
• Court: Superior Court of Pennsylvania

2 Pa.Super. 233

E. M. McCullough v. The Hartford Fire Insurance Company, of Hartford, Conn., Appellant

No. 14-1896

Superior Court of Pennsylvania

July 16, 1896

Argued May 5, 1896 [SYLLABUS MATTER]

Appeal by defendant, from judgment of C. P. Clarion Co., Aug. T 1894, No. 228, on verdict for plaintiff.

Assumpsit on fire policy. Before Clark, P. J. Verdict for plaintiff for $ 865.06.

The following facts were stated in the opinion of the Superior Court:

" Policy No. 1851 of the defendant company was issued by, and delivered through its local agent, A. S. Jones, at Clarion __ Pa. __, to the plaintiff, insuring him against direct loss or damage by fire except as therein provided, to an amount not exceeding $ 800 on his stock of jewelry, etc., for the term of one year from the 19th day of November, 1892, at noon, to the 19th day of November, 1893, at noon, for the premium of $ 12.00. In the statement filed the plaintiff claims, 'the said policy was renewed and continued for one year in consideration of the same rate of premium specified therein; and the sum of $ 5.00 lawful money of the United States, for the renewal of said policy, and in part payment of the premium for the renewed term, was paid by plaintiff to defendant on the 5th day of December, 1893, . . . . The receipt whereof was, in a renewal receipt delivered to plaintiff by defendant, through its authorized and duly constituted agent, A. S. Jones, acknowledged.' The following is a copy of the renewal receipt:

" The Hartford Fire Insurance Company. Hartford, Connecticut. Incorporated 1810. Charter Perpetual. George L. Chase, President; P. C. Royce, Secretary; Chas. E. Chase, Assistant Secretary. Agency at Clarion, __ Pa. __, December 5, 1893. $ 5.00. Received of E. M. McCullough five dollars on account of eight hundred dollars insurance renewal of policy 1851. Five Dollars. (Signed) A. S. Jones."

It also appears from the record that the above receipt was admitted (8) and was made the subject of the defendant's third point: " The receipt in evidence is no contract of insurance," which was answered as follows:

" We will answer that in the affirmative with this qualification: We do not say that the receipt of itself is sufficient to make a contract of insurance, but we say it is evidence of a contract of insurance, taken in connection with the testimony of the plaintiff, and you will consider the receipt and that evidence together with all of the other evidence in the case."

There was evidence which, although conflicting, tended to show, as the jury found that it did show, that a renewal of the insurance had been executed. The court charged the jury that if they believed the plaintiff's testimony the preponderance was with him. The defendant company contended that the alleged renewal contract between the plaintiff and the agent was tentative and executory, being dependent on further acts to be performed by the plaintiff.

The court charged the jury, inter alia as follows:

But the defendant contends that the alleged renewal of December 5, 1893, did not renew the policy of November 19, 1892, because A. S. Jones, the agent, did not make out the said renewal receipt in the form required by the defendant company, and that it was not signed by the president, attested by the secretary, and countersigned by the agent, as required in the Certificate of Authority, issued by the company. This Certificate of Authority reads as follows:

* * * *

We cannot agree with the contention of counsel for the defendant in their construction of this certificate, and of the rules and instructions set forth in the book of printed instructions to A. S. Jones, their agent.

* * * *

It is your duty to take the construction of the court as to what the power is, and we think it is apparent that the agent had the authority to make a contract for insurance -- that he had authority to make an agreement to renew the policy No. 1851.

* * * *

We say to you, gentlemen, that if the contract of insurance or for a renewal was made by the defendant company's agent as claimed by the plaintiff, and he relied on the statements of A. S. Jones, agent, when he paid that $ 5.00, and he was to have sufficient time, until he was able to pay the balance, or pay it at some time again (as was stated, we believe, in his testimony afterwards, when he met Jones some other place; we believe he stated he would pay it to him in a short time), and he went away at that time fully believing and resting on the guaranty made by Jones as agent of the company that it was all right, and believed from that statement that he was fully insured to the amount of $ 800, that his policy No. 1851 was renewed for one year from the 19th of November, or one year from the 5th of December, 1893, why, the defendant company ought to pay whatever loss the plaintiff has sustained by reason of the fire of February 20, 1894.

* * * *

Now, gentlemen, where is the preponderance of the evidence in this case? You have heard the evidence of the plaintiff, E. M. M'Cullough; if that is believed by you, we think he has made out a case.

* * * *

He further alleges that the premium designated in the policy of insurance, $ 12.00, for one year, from the 19th of November, 1892, at noon, to the 19th day of November, 1893, at noon, which was paid, and the subsequent acceptance and receipt by the agent of $ 5.00, on account of $ 800 insurance renewal of said policy, paid said insurance at the rate fixed in the policy for the period of five months from the expiration of the policy, to wit, from the 19th of November, 1893, at noon, to the 19th of April, 1894, at noon.

Errors assigned were, refusal of binding instructions for defendant; portions of the general charge as set out in the opinion of this court, quoting same; admission of the renewal receipts and answering defendant's third point in relation thereto, as set out in the statement of facts, reciting same.

Don C. Corbett and C. Heydrick, for appellant. -- While no statute prohibits parol contracts of insurance, yet the Supreme Court of this state has recognized this distinction. A summary of the cases involving contracts of insurance in parol which we have been able to find are here given: Hamilton v. Ins. Co., 5 Pa. 339; Ins. Co. v. Johnson, 23 Pa. 72; Ins. Co. v. Robinson, Rea & Co., 56 Pa. 256; Patterson v. Ins. Co., 81* Pa. 454; Ins. Co. v. May's Exrs., 2 W. N.C. 43; Sanborn v. Ins. Co., 16 Gray, 448; Ellis v. Ins. Co., 50 N.Y. 402; Angell v. Ins. Co., 59 N.Y. 171; Cockerill v. Ins. Co., 16 Ohio, 148; Ins. Co. v. Kelly, 24 Ohio, 346; Ins. Co. v. Kinne, 77 Mich. 231. The printed instructions were in evidence and these were for the jury: American Life Ins. & Trust Co. v. Shultz, 82 Pa. 51.

Jno. S. Shirley and C. Z. Gordon, with them Harry R. Wilson and W. D. Burns, for appellee.

Before Rice P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.

OPINION

ORLADY, J.

A vigorous defense was made by the company on the facts, but they were resolved against it by the jury returning a verdict in favor of the plaintiff for $ 865.06. This finding was accepted as conclusive; no motion for a new trial was made, as the manifest weight of the evidence was with the plaintiff. There is no remedy in this court as to that phase of the case: Gates v. Watt, 127 Pa. 20, 17 A. 751.

The defendant's first point (1st assignment) was, " Under all the evidence in the case, the verdict should be for the defendant," the answer being, " we refuse this point as we have submitted it to you under all the evidence."

The testimony adduced as to what occurred when the parties met was of the most conflicting character. The contradictions between the agent of the defendant and the plaintiff could only be adjusted by the jury: Springfield F. & M. Ins. Co. v. Brown, 128 Pa. 392, 18 A. 396; O'Hara v. U. B. Mut. Aid Society, 134 Pa. 417, 19 A. 683; Curry v. Sun Fire Office, 155 Pa. 467, 26 A. 658.

Appellant's third point (7th assignment) was, " The receipt dated December 5, 1893, in evidence is not a contract of insurance," and the answer, " We will answer that in the affirmative with this qualification: we do not say that the receipt of itself is sufficient to make a contract of insurance, but we say it is evidence of a contract of insurance, taken in connection with the testimony of the plaintiff, and you will consider the receipt and that evidence together with all the other evidence in the case."

The contention of defendant was, first, that Jones as agent did not in fact renew the policy No. 1851, which fact as stated was found against the company; the second proposition was, that Jones as agent did not have authority to bind this principal in any other way than prescribed in the certificate of authority issued to him, that is, as stated by the court in the charge (2d assignment), " The alleged renewal of December 5, 1893, did not renew the policy of November 19, 1892, because A. S. Jones, the agent, did not make out the said renewal receipt in the form required by the defendant company, and that it is not signed by the president, attested by the secretary and countersigned by the agent as required in the certificate of authority issued by the company. This Certificate of Authority reads as follows:

" Agency No. 1049. To A. S. Jones, Clarion, etc. This is to certify that the Hartford Fire Insurance Company reposing special trust and confidence in your ability and fidelity doth hereby appoint you agent thereof for Clarion and its vicinity, . . . . with power to receive proposals for insurance, fix rates of premium, receive monies, countersign, issue and renew policies when duly signed by its president and attested by its secretary . . . . subject to the rules of the office and the...