Ferguson v. Northern Assur. Co. of London
| Decision Date | 26 October 1910 |
| Parties | FERGUSON et al. v. NORTHERN ASSUR. CO. OF LONDON et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Fall River County.
Action by Will O. Ferguson and another against Northern Assurance Company of London and another. From a judgment for plaintiffs and from an order denying a new trial, that company appeals. Reversed.
Martin & Mason, for appellant.
S. E Wilson and G. M. Cleveland, for respondents.
This was an action brought to recover $2,000 from the defendant insurance companies, it being claimed that they were jointly liable for same, owing to the destruction of property of plaintiffs upon which plaintiffs claimed they had insurance in such companies. Upon the trial, when plaintiffs rested their case, the defendant German Alliance Insurance Company moved for the dismissal of the action as against it, which motion was granted, and the Northern Assurance Company excepted to such ruling. The Northern Assurance Company then moved for direction of verdict, and the same was denied. This defendant renewed such motion at the close of the evidence and it was again denied, and a judgment having been recovered by the plaintiffs, and the court having overruled a motion for new trial, the Northern Assurance Company has appealed to this court from such judgment and order denying new trial.
The appellant having questioned the sufficiency of the evidence to sustain the verdict and judgment, it becomes necessary for us to construe such evidence in the light most favorable to the respondents. Following such rule, the following facts would appear to have sufficient evidence for their support On October 12, 1906, one Flannigan, as the local agent for appellant at Hot Springs, S. D., wrote a policy in the appellant company for $2,000 upon the property described in the complaint, which said policy was procured for the plaintiffs by their father. On October 15, 1906, said company by wire ordered this policy canceled, and the same was canceled and sent to the company. The company at that time instructed its said agent not to issue any future policies on this property, and on June 6, 1907, the company, through its special agent, gave Flannigan written instructions not to insure this risk. As soon as the policy was canceled as above mentioned, and on October 16, 1906 Flannigan issued to the plaintiffs a policy in the defendant German Alliance Insurance Company, which policy covered this property and remained in force until October 16, 1907. On October 12, 1907, one of the plaintiffs had a conversation with Flannigan, in which Flannigan desired to renew such insurance, and, after some conversation, it was finally agreed that Flannigan should renew the same, and said plaintiff advised him that he was going to be out of town for a few days, but for him Flannigan, to be sure and not let the insurance expire. Plaintiff offered to pay him at that time, but the agent said it would be all right until he returned. At this time October 12, 1907, Flannigan was the agent of at least three insurance companies, namely, the two defendants, and the Sun Insurance Company. Plaintiffs knew that they were carrying a policy in one of the companies which Flannigan represented, and knew that he represented several companies, but they did not know the name of the company with which they were then carrying a policy or the other companies for which Flannigan was agent. In the conversation had between the one plaintiff and Flannigan in relation to renewal of insurance, there was nothing said as to what company was to take this insurance, nor as to the amount of the premium. Flannigan on October 14, 1907, wrote up a policy of $2,000 on the property in question, placing such policy with the appellant company. The risk, by its terms, was to commence at noon on October 17, 1907, and to run one year. Flannigan retained the policy in his office, and sent in a daily report, and upon the morning of October 17, 1907, he received a telegram from the appellant, dated October 16, ordering the cancellation of such policy. In accordance with such telegram, Flannigan canceled such policy before noon on October 17, 1907. He marked the policy, "Canceled by order of company, 10-17-07," placed it in an envelope, and mailed it to appellant, said policy never having been in the possession of either plaintiff. Plaintiffs received no notice that this policy had been written until long after the fire, which fire occurred on October 25, 1907, and which fire destroyed the property described in said policy. After the fire, and on November 5, 1907, plaintiffs made out proof of loss, and sent same to German Alliance Insurance Company, which proof of loss contained the following: "By your policy No. 559 expiring the 16th day of October, 1907, *** and which said policy was ordered to be rewritten by the undersigned...
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