Harbour v. Reliable Ins. Co.
| Citation | 385 P.2d 220,94 Ariz. 344 |
| Decision Date | 18 September 1963 |
| Docket Number | No. 7502,7502 |
| Parties | C. E. HARBOUR, Appellant, v. RELIABLE INSURANCE COMPANY, a corporation, Agricultural insurance Company, a corporation, Tri-City Credit Insurance Agency, Inc., a corporation, Appellees. |
| Court | Supreme Court of Arizona |
Rawlins, Ellis, Burrus & Kiewit, Phoenix, for appellant.
Gust, Rosenfeld & Divelbess, Phoenix, for appellees Reliable Ins. Co. and Agricultural Ins. Co.
Allan K. Perry, Phoenix, for appellee Tri-City Credit Ins. Agency, Inc.
Appellant was plaintiff in a suit to collect on insurance policies covering hail damage to his cotton crop. The trial court granted summary judgment for the defendant insurance companies and their agent, Tri-City Credit Insurance Agency, Inc., and it is from that judgment that plaintiff appeals.
In considering the motion for summary judgment, this Court must take that view of the evidence most favorable to the plaintiff and give the plaintiff the benefit of all favorable inference that may be reasonably drawn from the evidence. If, when viewed in this manner, the evidence is such that reasonable men might reach different conclusions as to whether there is a genuine issue as to any material fact the judgment must be reversed. 6 Moore's Federal Practice (2nd ed. 1953) Sec. 56.
Viewed in this light the evidence is as follows: Two insurance policies were taken out by one Marion Neal to cover possible hail damage to a cotton crop. Two policies were taken out because it is customary for the insured to tell the insurance agent the amount of coverage wanted and for the agent to place the insurance with more than one company so that each company may limit its exposure.
When Mrs. Neal took out the insurance policies she went at first to one Cottrell, an insurance agent with whom she had previously done business. Cottrell took her to the office of the Creenwood Insurance Agency where the application for insurance was taken by Mrs. Greenwood. Mrs. Greenwood does business as the Tri-City Credit Insurance Agency, a separate business from the Greenwood Insurance Agency. The offices are across the street and Mrs. Greenwood went to her husband's office to take the applications; his company was not able to place crop hail insurance. Mrs. Neal was not informed that the insurance was being placed by Tri-City rather than by the Greenwood Agency. At all times she thought she was dealing with the Greenwood Agency. When the applications were taken, Mrs. Neal did not know that Mrs. Greenwood took them. She did not know that she had met Mrs. Greenwood. Mrs. Neal told the insurance agents that she was planning to sell the land and, as Mrs. Greenwood said:
'That a such time as she did she would notify us.'
The premiums on policies were not paid at the time of the application.
When the policies were received by Tri-City, Mrs. Greenwood billed and mailed them to Cottrell. The land was sold about this time and the plaintiff paid the premium on the policies to Cottrell who deducted his commission and sent the balance of the premium to Mr. Greenwood. A receipt for the premium was issued by Mrs. Greenwood (of Tri-City) for the 'A C Harbour Account'--the account of the-plaintiff. Prior to the time of payment the plaintiff had requested Cottrell to make sure the policies were transferred to his name as had Mrs. Neal. Both Cottrell and Mrs. Neal had made this request of Mr. Greenwood of the Greenwood Agency. In Mrs. Neal's presence, Mr. Greenwood took down the necessary information to make the transfer. Mr. Greenwood stated at that time that the requested transfer would be handled by his agency. Both Mrs. Greenwood and defendant companies claim that no request for transfer of the policies were made of them.
The policies require that where the policy is assigned it shall not be valid except with written consent of the company. The normal practice was for Mrs. Greenwood (Tri-City) to notify the companies to get their consent. The request to her was usually made orally.
After the policies had been in effect about a year a hailstorm occurred causing loss. A request for payment was made of the companies by the plaintiff. Two of their agents went to Mrs. Neal's (the seller and original applicant for insurance) and offered to give her $12,000 for a release. They wanted the release because the policies were in her name and not in the name of the plaintiff. At the time the offer was made the representatives of the defendant companies knew the title to the land was in the plaintiff and not in Mrs. Neal. She refused this offer as the...
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