Gaskins v. Firemen's Ins. Co. of Newark, N. J.
| Decision Date | 16 March 1945 |
| Docket Number | 15723. |
| Parties | GASKINS v. FIREMEN'S INS. CO. OF NEWARK, N. J. |
| Court | South Carolina Supreme Court |
Williams & Stewart, of Lancaster, for appellant.
James E. Leppard, of Chesterfield, for respondent.
The plaintiff sued upon an oral contract to insure. The facts show that in the early part of August, 1935, the plaintiff applied to the defendant's agent at Chesterfield for a fire insurance policy on his dwelling house in the sum of $1,200. It was agreed that $600 of this insurance would be placed with the appellant, Firemen's Insurance Company of Newark, New Jersey. A policy for one year bearing date August 10, 1935, was written by appellant's agent in accordance with this agreement, but not delivered.
Shortly thereafter the plaintiff was informed by the insurance agent at the latter's office that The Federal Land Bank of Columbia, holder of a mortgage covering plaintiff's premises, carried insurance on his dwelling house, and that no additional insurance could be issued until after the payment of the bank's mortgage, or until the insurance carried by the Bank had been cancelled. The agent at this second conference agreed with the plaintiff, for a stated premium of $22, to insure his dwelling house for a period of one year with the appellant, effective immediately upon the cancellation of the policy carried by The Federal Land Bank. The insurance held by the Bank was subsequently cancelled, on December 10, 1935, but appellant's agent failed and neglected to insure the plaintiff as agreed upon. The plaintiff's dwelling house was destroyed by fire on November 22, 1936. This action was instituted following the refusal of appellant to pay the loss.
As shown by the evidence, W. J. Eddins was not only the agent of the appellant at Chesterfield, but was also the secretary and treasurer of the Wamble Farm Loan Association which handled loans as an agent of The Federal Land Bank of Columbia. The plaintiff made all of his payments on the real estate mortgage to The Federal Land Bank through Mr. Eddins, its agent; and this indebtedness was paid in full on February 5 1936. It may reasonably be inferred that the agent knew when first approached by the plaintiff in August, 1935, that the latter contemplated the early discharge of the mortgage indebtedness and wished to insure his property with an insurance company which maintained a local agent in Chesterfield.
The case was submitted to the jury and resulted in a judgment and verdict thereon for the full amount claimed, together with interest. Appellant appeals from the denial by the lower court of its motions for a nonsuit, directed verdict and a new trial, which motions were made upon the ground that the evidence showed conclusively that no contract existed between the plaintiff and the defendant at the time of the destruction of plaintiff's property by fire.
Appellant contends that the proof fails to establish that a valid insurance contract was entered into between the plaintiff and the defendant, in that the oral agreement did not definitely fix the date of the commencement of the risk, the premium to be charged, or the company in which the insurance was to be placed.
As to proof, there is nothing peculiar in contracts of insurance. So far as the law is concerned, an insurance contract does not differ from other contracts. If the minds of the parties have met in regard to the essential parts of the agreement it does not matter whether the form of the contract is written or oral. The power to make completed oral contracts of insurance, as well as executory agreements to insure in the future, is now sustained by practically all of the cases, in the absence of charter or statutory regulations forbidding them. Stickley v. Mobile Ins. Co. 37 S.C. 56, 16 S.E. 280; Fulmer v. London, Liverpool & Globe Fire Ins. Co., 172 S.C. 525, 174 S.E. 466; 29 Am.Jur., Sec. 127, Page 143; Annotation, 92 A.L.R. 232.
Oral contracts of insurance, like other insurance contracts, must be definite and certain. All parties must agree upon the necessary terms, including those in relation to the subject matter insured, the risk insured against, the commencement and duration of the risk, the amount of insurance, and the premium to be paid. Fulmer v. London, Liverpool & Globe Fire Ins. Co., supra.
Appellant argues that there is no liability for the loss, because these matters were left undetermined: the amount of premium to be paid, the date when the contract of insurance should become effective, and the name of the insurance company with which the insurance was to be placed. In our opinion, this contention cannot be sustained as shown by the evidence heretofore referred to.
Taking the testimony as a whole and viewing it in the light most favorable...
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