Collins v. Aetna Ins. Co.

• Decision Date: 11 December 1931
• Citation: 138 So. 369,103 Fla. 848
• Parties: COLLINS v. AETNA INS. CO.
• Court: Florida Supreme Court

138 So. 369

103 Fla. 848

COLLINS v. AETNA INS. CO.

Florida Supreme Court, Division B.

December 11, 1931

Suit by G. A. Collins against the Aetna Insurance Company. From a final decree dismissing the bill of complaint, the complainant appeals.

Affirmed. Appeal from Circuit Court, Taylor County; Hal W. Adams, judge.

COUNSEL

Davis &amp Pepper, of Perry, for appellant.

Cockrell & Cockrell, of Jacksonville, for appellees.

OPINION

TERRELL J.

This appeal is from a final decree dismissing a bill of complaint seeking specific performance of a parole agreement to insure a certain dwelling house, the property of appellant.

It appears that G. A. Collins, the appellant, in April, 1926 owned a house and lot just outside the corporate limits of Perry, Fla.; that he approached W. L. Weaver, a resident insurance agent of Perry who represented the appellee, and seven other fire insurance companies for the purpose of insuring said house; that Weaver in company with appellant inspected the house, and he (Weaver) offered to insure it for $800. The appellant accepted the offer. Nothing was said about the time the policy was to run or when the risk was to begin, the rate of premium to be paid, or the company in which the risk was to be taken. Weaver did not write the policy, the house was burned about six weeks later, appellee declined to pay for it, so appellant instituted this suit to coerce performance of Weaver's agreement.

The law is well settled that a parole contract to insure may be enforced in law. The fact that such a contract contemplates the issuance of the policy at some definite future date does not militate against it. Such contracts, as distinguished from a parole agreement to issue a policy must not be executory, but must take effect in praesenti. Joyce on Insurance, vol. 1, p. 148 et seq.; May on Insurance (4th Ed.) § 23; Kerr on Insurance, p. 56; 14 R. C. L. 880. It is also settled that such contracts may be enforced in equity by a suit for specific performance of the agreement to insure, but, like all other contracts, they must possess the legal prerequisites to be valid and enforceable.

In Joyce on Insurance (2d Ed.) § 38, it is said that, to entitle one to specific performance of a verbal agreement to insure or to issue a policy, he must prove an oral contract possessing all the essentials of a written contract of insurance, that it to say, the subjectmatter, the risk insured against, the amount of insurance, the rate of premium, the duration of the risk, and the identity of the parties. The rule announced in 14 R. C. L. 882, is also apposite. Croft v. Hanover Fire Ins. Co., 40 W.Va. 508, 21 S.E. 854, 52 Am. St. Rep. 902; Northwestern Iron Co. v. Aetna Ins. Co., 23 Wis. 160, 99 Am. Dec. 145, and note.

It is true that the terms of the agreement and the intent of the parties may be determined from their relation to each other, their previous business dealings, and the facts and circumstances attending the transaction, but such determination must be supported by such facts and circumstances as evidence conclusively a meeting of the minds of the parties as to all the essentials of the agreement. The mere fact of having had previous insurance dealings is not sufficient.

In the case at bar, it is shown that appellant had on several occasions taken insurance with Weaver, in some instances for one year and in others for three years, that credit was sometimes extended on the premium for thirty days or more and that Weaver represented requtable insurance companies, one of which, the appellee, took risks outside the limits of incorporated cities, but it is not shown...