HARDEN v. ST. PAUL FIRE & MARINE INS. CO.

• Decision Date: 20 March 1947
• Docket Number: No. 4973,4973
• Citation: 178 P.2d 578,51 N.M. 55
• Court: New Mexico Supreme Court
• Parties: HARDEN et al. v. ST. PAUL FIRE & MARINE INS. CO.

51 N.M. 55

178 P.2d 578

HARDEN et al.

v.ST. PAUL FIRE & MARINE INS. CO.

No. 4973.

Supreme Court of New Mexico.

March 20, 1947.

[178 P.2d 578, 51 N.M. 56]

W. A. Keleher, Theo. E. Jones and E. L. Swope, all of Abuquerque, and Filo Sedillo, of Belen, for appellant.

Iden & Johnson of Albuquerque, for appellees.

McGHEE, Justice.

This is an appeal from a judgment for the loss by fire of a carload of nails claimed to have been covered by an oral contract of insurance. We will refer to the parties as they appeared in the trial court.

The plaintiffs are engaged in growing, marketing and shipping vegetables and other crops from the Bluewater-Toltec Irrigation District near Grants, New Mexico, and as a part of the business own and operate a parking shed and a shook or box factory where lumber is processed for making crates and containers, and where crates are assembled for holding vegetables, fruits, etc. In originating and developing the business they purchased some property from the Geo. E. Breece Lumber Company near Grants on which were located many buildings that were to be repaired and remodeled for use in their business, including materials for making packing crates. They desired complete insurance on their buildings, machinery and supplies, as well as all of their operations, and tendered such business to Mr. Cy Rouse, the sole local insurance agent, newspaper publisher, editor, and as one of plaintiffs' witnesses appraised him, 'the general man about town.' Not only was he the sole insurance agent of Grants but the defendant was his only insurance company. As he was new in the business, he felt he should not act without advice from the state agent of the defendant, P. H. Ware.

The plaintiff Church, Rouse and Ware met in Grants and inspection was made of the scattered buildings, machinery, and some supplies. Church informed them of the desire of plaintiffs to have comprehensive coverage on all of their property and operations, but was advised the defendant did not issue such policies, but it would be glad to have their fire insurance business. Valuations on certain of the buildings and machinery were agreed upon, and it was agreed by Rouse and Ware that the insurance was immediately effective, with the policy to be later issued. It is agreed that as other buildings were completed 'riders' would be issued covering them and their contents and attached to the master policy.

The only loss by fire was the carload of nails. The defendant pleaded the complaint did not state a cause of action, deniedthe allegations of the complaint, claimed its agents acted without authority, urged the matters set out in the complaint werewithin the Statute of Frauds, and in any event, it was only liable for three-fourths of the value of the nails.

In this court it has abandoned all defenses except that the evidence is insufficient to establish a valid oral contract of insurance on the nails, and that if liable then it cannot be held for more than three-fourths value instead of the full value as allowed by the jury.

The parties agree that the necessary elements to effectuate an oral contract of insurance are: (1) the subject-matter; (2) the risk insured against; (3) the duration of the risk; (4) the amount of insurance; (5) the rate of premium paid or agreed to be paid; and (6) the identity of the parties.

The trial judge correctly instructed the jury that each of these matters had to be established by a preponderance of the evidence in order for the plaintiff to recover. The record shows Church told Rouse and Ware that he was going to establish the shook or box factory, that he...