Bingham v. Ins. Co. of N. Am.

• Decision Date: 15 October 1889
• Citation: 43 N.W. 494,74 Wis. 498
• Parties: BINGHAM ET AL. v. INSURANCE CO. OF NORTH AMERICA.
• Court: Wisconsin Supreme Court

74 Wis. 498

43 N.W. 494

BINGHAM ET AL.

v.INSURANCE CO. OF NORTH AMERICA.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from circuit court, Winnebago county.

This action is to recover damages for loss under a policy of insurance issued by the defendant to the firm composed of the plaintiffs, upon the buildings and personal property therein described, in the aggregate sum of $2,500, for the period of one year, commencing March 17, 1887, and ending March 17, 1888. The property was destroyed by fire September 17, 1887. The policy contained the following clause: “The policy may also be at any time canceled by the company, on refunding or tendering to the assured, his, her, or their agent or representative, a ratable proportion of the premium for the time unexpired.” The answer was to the effect that the policy was surrendered, given up, and canceled on or about August 16, 1887, and before the fire. At the close of the trial the jury returned a special verdict, in which 10 questions were answered, to the effect that the plaintiffs were the owners of the property insured when insured and at the time of the loss; that the defendant's local agent notified the plaintiffs that the defendant proposed to cancel the policy, and requested them to return it to him, and thereupon the plaintiff Perrin agreed to return the policy; that, in pursuance of such request, the plaintiffs did return the policy to the local agent on or about August 16, 1887; that the defendant's local agent did not, at any time before the fire and after the return of the policy, inform the plaintiff Perrin of the amount of unearned premium, nor did said agent ask for credit for such unearned premium, and Perrin did not agree to give him credit therefor; that the amount of the plaintiffs' loss on the buildings insured was $4,000; that the plaintiffs' loss on personal property insured was $40,000; that the defendant never paid or tendered payment of the unearned premium; that the plaintiffs were entitled to recover $2,670.54 as damages, if anything. Thereupon the plaintiffs moved the court for judgment upon the special verdict so returned, and the same was granted. From the judgment entered thereon in favor of the plaintiffs, the defendant brings this appeal.Finches, Lynde & Miller, ( Finch & Barber, of counsel,) for appellant.

Gabriel Bouck, for respondents.

CASSODAY, J., ( after stating the facts as above.)

Under the clause of the policy contained in the foregoing statement, the defendant was at liberty at any time before the loss to cancel the policy, on refunding or tendering to the plaintiffs or their agent or representative a ratable proportion of the premium for the time unexpired. It is conceded, in effect, that the property insured was located at Ironwood, Mich., where the plaintiffs resided; that the plaintiffs procured the policy through the defendant's agent Dickinson, located at New London, Wis., some 200 miles distant from Ironwood; that the plaintiff Perrin had formerly been the defendant's local agent at New London, and was succeeded by Dickinson, who still owed him several hundred dollars on his purchase of the business; that about August 1, 1887, the said local agent informed the plaintiff Perrin, at New London, that the defendant's special agent had ordered him to cancel the policy, and requested him (Perrin) to bring the policy down to New London for that purpose, which Perrin then and there agreed to do; that August 16, 1887, Perrin brought the policy down to New London, and gave it to the agent through his office window or door. Eight of the ten several questions constituting the special verdict were answered by the consent and agreement of counsel, and hence were not submitted to the jury. The only questions submitted to the jury were the following: “(3) Did Dickinson, at any time before the fire and after the return of the policy, inform Perrin of the amount of unearned premium?” “(5) Did Dickinson ask for credit for such unearned premium, and did Perrin agree to give him credit therefor?” Under the charge of the court each of these questions was answered by the jury in the negative.

It appears from the undisputed testimony of Dickinson that at the time the policy was returned to him he, in effect, marked it “Canceled,” and sent it to the defendant's general agent at Erie, Pa., and also entered in the books of the company at New London a statement to the effect that the policy was canceled, with the several amounts of the premium paid, and the earned premium and the unearned premium. Dickinson also testified, in effect, that at the time he requested Perrin to bring the policy to New London the latter replied that he was going up to Ironwood, where the policy was, and that he would then get it, and bring it down, and that that would give him time to look up some more insurance; that when Perrin returned to him the policy he told Perrin that he had no funds...