Fidelity-Phenix Fire Ins. Co. v. Sch. Dist. No. 10, Johnston Cnty.

• Decision Date: 08 March 1921
• Docket Number: Case Number: 9918
• Parties: FIDELITY-PHENIX FIRE INS. CO. v. SCHOOL DIST. NO. 10, JOHNSTON COUNTY.
• Court: Oklahoma Supreme Court

1921 OK 77

196 P. 700

80 Okla. 290

FIDELITY-PHENIX FIRE INS. CO. v. SCHOOL DIST. NO. 10, JOHNSTON COUNTY.

Case Number: 9918

Supreme Court of Oklahoma

Decided: March 8, 1921

Syllabus

¶0 1. Insurance--Fire Insurance-- Authority of Agent--Oral Agreement to Renew Policy. Where a fire insurance company appoints an agent with authority to receive applications for insurance, pass upon and accept or reject the risk, receive the premium and issue the policy therefor, and on the expiration of policies in force to re-insure said property under a new policy issued by the agent such person is a general agent for the company and he may, by oral agreement to renew a policy which has just expired, bind his principal by such oral agreement.

2. Same--Failure of Agent to Issue Renewal Policy--Loss by Fire--Action Against Company for Damages. Where such agent agrees to issue a policy of insurance or re-insure the property the policy of insurance on which has just expired and the agent fails to issue said policy of insurance, and the person contracting for such insurance suffers a loss, such person may maintain an action in damages against the insurance company said agent is representing to recover the damage he sustained by reason of the failure of the insurance company to issue the policy.

3. Same-- Measure of Damages. The measure of damage in such case would be the amount the plaintiff would have been entitled to recover under the policy of insurance had the same been written.

4. Same--Contract for Renewal of Policy--Sufficiency of Evidence. The evidence examined, and held, that it is sufficient to constitute a contract for the renewal of the policy of the insurance, and the jury having found in favor of the plaintiff, this court will not disturb the findings of the jury where there is sufficient evidence to support such findings and verdict.

5. Appeal and Error-- Harmless Error--Instructions. Where it is manifest by the verdict that the jury was not misled by the giving of an erroneous instruction, and no prejudicial error was committed, the case will not be reversed because of such erroneous instruction.

6. Appeal and Error--Damages for Failure of Insurance Company to Issue Fire Policy--Verdict--Evidence. The amount of damages awarded to plaintiff by the jury is supported by the evidence, and the verdict having received the approval of the trial court trying the cause, the verdict will not be disturbed because the jury might have found a different amount of damages under the testimony of a witness for the plaintiff.

Scothorn & McRill, for plaintiff in error.

Cornelius Hardy, for defendant in error.

MILLER, J.

¶1 In this action school district No. 10 of Johnston county, Oklahoma, plaintiff, alleged that the defendant, Fidelity-Phenix Fire Insurance Company, a corporation, by and through its agent, J. F. Pate, orally agreed to renew a certain policy of insurance known as policy No. 1100, on the school building, furniture, and fixtures of the plaintiff, located at Ravia, Oklahoma. That policy No. 1100 had been issued by the said J. F. Pate as agent of the defendant company, on April 28. 1915, for a period of one year, expiring on the 28th day of April, 1916, at 12 o'clock noon of said day. That the agreed price or premium for said insurance was $ 51. That said policy No. 1100 contained this provision for renewal:

"This policy may by a renewal be continued under the original stipulations, in consideration of premium for the renewal term, provided that any increase of hazard must be made known to this company at the time of renewal or this policy shall be void."

¶2 That on the 29th day of April, 1916, at about eleven o'clock a.m., school district No. 10, by and through its director, W. C. Holland, made an oral agreement for the renewal of said policy; that said policy was to go into effect at twelve o'clock, noon, on the 29th day of April, 1916, for a period of one year, which would expire at noon on the 29th day of April, 1917. That the said J. F. Pate, as agent of said defendant company, agreed to issue said policy. That on the night of the 29th day of April, 1916, at about 9:30 o'clock, the said building and fixtures therein contained were totally destroyed by fire. The company was duly notified of the loss on the 11th day of May, 1916. The plaintiff asks for judgment in the sum of $ 6,218.66, together with interest at the rate of six per cent. per annum from the 29th day of April, 1916. The defendant filed a duly verified amended answer in which it denied that J. F. Pate was the agent of the company for the doing of things alleged in plaintiff's petition and denied that he had any authority as agent of the defendant company to do the acts alleged in plaintiff's petition. The defendant, as a second defense, alleged that the plaintiff did not have authority under the Constitution and laws of the state of Oklahoma to enter into a contract with the defendant for insurance at the time it alleges the contract for the insurance was made, for the reason that on the 29th day of April, 1916, the said school district had created indebtedness in excess of the income and revenues provided for and had made no provision to pay the money required for premium on said policy. On the trial of the case the record evidence disclosed that the plaintiff school district had not created indebtedness in excess of its revenues and income provided for, and this defense was abandoned by the defendant company. The case was tried to a jury, which returned a verdict for $ 6,218.66, and judgment was rendered on the verdict. The defendant filed its motion for a new trial, which was by the court overruled, exceptions saved, and notice of appeal given and this appeal perfected. The plaintiff in error makes five assignments of error; then, setting out the first four of its assignments in its brief, states as follows:

"(1) The trial court erred in overruling plaintiff in error's motion for a new trial.

"(2) The trial court erred in overruling plaintiff in error's motion for an instructed verdict.

"(3) The verdict of the jury is contrary to law.

"(4) The judgment of the court is not sustained by sufficient evidence and is contrary to law.

"There is really only one question involved in this appeal, and that is whether or not a contract of insurance was entered into between the plaintiff and defendant. We shall therefore discuss the first four assignments of error together.

"We respectfully submit that no contract of insurance was ever entered into between the parties."

¶3 W. C. Holland testified that he resided at Ravia, Johnston county, Oklahoma; was chairman of the school board of said district No. 10. He was acquainted with J. F. Pate, the agent of said insurance company. That on the 28th day of April, 1916, he, was at Chickasha and arrived in Ravia on the 29th day of April, 1916, at 10:40 a.m. He went to the bank to deposit some checks and there had a conversation with Mr. Hathorn, who was clerk of the school board of said district. After said conversation, he went to the post-office to see Mr. Pate, who was agent of defendant company, and was also postmaster; he there had the following conversation with Mr. Pate:

"Q. I will ask you to state what the conversation was that you had there with Mr. Pate? A. I went in and I said, I understand, Mr. Pate, our insurance is out'; and he said, 'I went over to see Mr. Hathorn yesterday and he said they didn't have any money'; and I said. 'Well, it won't do for us to do without insurance; we are running too much risk'; and he said, 'Well Brother Holland, I could carry the insurance a while'; and I said, 'Well, maybe we could borrow the money from the bank and continue it and pay you back'; and about that time Mr. Wilkerson came to the window and he said, 'Brother Holland is in here'; and after they had a talk-- Q. Who said? The Court: Was Pate present? A. Yes, sir. The Court: Go ahead. A. And he said. 'Well. he would telephone him when his policy was out'; and I said, 'Mr. Pate, we must have this insurance renewed'; and he said, 'Well, as soon as I hear from Mr. Wilkerson I will renew it'; and I left, and the next morning I telephoned Mr. Pate and I said, 'Did you write up that insurance?'; and he said, 'If I had, Brother Holland, if I had, it would not have been no count'; and then I met him the next morning and he said, 'I didn't write up that insurance; if I had it wouldn't have been no count.' Q. What was that understanding in that conversation as to the amount of insurance that he was to write for you? A. I was under impress--Mr. McRill: We object to your impression--that he was to carry just what he had. Mr. McRill: Just state what he said. Q. You requested him to renew the policy that had expired, did you? A. Yes, sir. Q. And he told you that after Mr. Wilkerson telephoned him that he would do it? A. Yes, sir; he said as soon as he heard from Mr., Wilkerson."

¶4 Mr. Holland then identified the policy No. 1100 as the one he and Mr. Pate had the conversation about renewing, and said that he notified the defendant insurance company on the 11th day of May, 1916, and the defendant company wrote him denying any liability. It was conceded there was concurrent insurance on the building in the sum of $ 5,000, and that the insurance company would only be liable for three-fourths the value of the building and fixtures on account of the provision of the three-fourths liability clause contained in the contract. Mr. Holland further testified as follows:

"Cross- Examination.

"Q. You didn't offer to pay him any money for insurance, did you, Mr. Holland? A. No, sir. Q. You didn't leave him any warrant, did you? A. No, sir. Q. What did you say to Mr. Pate about the money? A. Well, the only statement I made was that he had had to carry it a while and I said we could borrow it from the bank and pay him back. Q. You expected to go to the bank and borrow money to buy insurance, did you? A. Well, we could have done it, sir. Q. Had you ever done

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