Behnke v. Standard Acc. Ins. Co.
| Decision Date | 06 June 1930 |
| Docket Number | No. 4312.,4312. |
| Citation | 41 F.2d 696 |
| Parties | BEHNKE et al. v. STANDARD ACC. INS. CO. OF DETROIT, MICH. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
M. G. Eberlein, of Shawano, Wis., for appellants.
Howard A. Hartman, of Milwaukee, Wis., for appellee.
Appellants were engaged in operating a portable sawmill and logging in Forest county, Wis. Their compensation insurance prior to October, 1925, had been handled by Ross Richardson, cashier of the Wabeno State Bank, Wabeno, Wis. Some time in September, 1925, appellants were advised by Richardson that their policy procured for them by him in London Guaranty & Accident Company would expire on October 1, 1925, and as that company refused to renew it appellants would have to seek insurance from another company. Richardson thereupon attempted to secure compensation insurance for appellants elsewhere. He was an agent of the Fidelity & Deposit Company of Maryland, of which William M. Wolff of Milwaukee was the general manager of that district, and to whom Richardson had previously forwarded applications for various kinds of insurance, receiving a commission on such business from the Wolff agency; but up to this time he had never submitted an application to the Wolff agency for compensation insurance. He was not, and never had been, an agent of appellee, nor had he ever procured insurance through appellee company, or the George H. Russell Company, its Milwaukee agent.
September 16, 1925, Richardson wrote and mailed the following letter:
In response to that letter Wolff wrote and mailed the following letter:
Richardson forwarded Wolff's letter to appellants, and in response thereto they, under the company name, wrote and mailed to Richardson the following:
October 3, 1925, Wolff wrote and mailed to Richardson the following:
The proposal for compensation insurance referred to in Wolff's last letter is mentioned several times in the record as the "application." In its original form it was a printed document, and was used by all the companies belonging to the organization known as "Associated Companies." This particular proposal had the following printed title, The Wolff agency did not have this particular form on hand, but secured it from George H. Russell Company, appellee's agent at Milwaukee. Wolff was not an agent of appellee.
On October 8 Richardson sent Wolff's letter of October 3 and the application to Behnke, who, after checking and signing the application, returned it to Richardson, who in turn forwarded it to Wolff. Appellee received it from Wolff on October 13, 1925. October 17 appellee wired Wolff its refusal to execute the policy, and on the same day Wolff wrote Richardson the following letter:
There is evidence to the effect that it would take a day or two for a letter from Milwaukee to reach Wabeno. Richardson was unable to say when he received it.
On October 21, 1925, appellants' employee was killed. The following morning one of the appellants notified Richardson at the bank of this fact, and asked for his policy; whereupon Richardson informed him that he had just received a communication from the Wolff agency at Milwaukee stating that the company refused to issue it.
That a valid contract of insurance may be either oral or in writing, provided the minds of the parties have met, is well settled under the Wisconsin law. Milwaukee Bedding Co. v. Graebner, 182 Wis. 171, 196 N. W. 533. It is equally well settled that an insurance company may be liable for its delay in passing upon an application for insurance. Duffie v. Bankers' Life Association, 160 Iowa, 19, 139 N. W. 1087, 46 L. R. A. (N. S.) 25; King v. Hekla Fire Insurance Co., 58 Wis. 508, 17 N. W. 297.
In addition to these two propositions of law appellants also rely upon section 209.05, Wisconsin Statutes 1927, which is as follows:
"Every person or member of a firm or corporation...
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