Hartford Fire Ins. Co. v. Tatum

Decision Date15 April 1925
Docket NumberNo. 4469.,4469.
Citation5 F.2d 169
PartiesHARTFORD FIRE INS. CO. v. TATUM.
CourtU.S. Court of Appeals — Fifth Circuit

J. S. Atkinson and Alex F. Smith, both of Shreveport, La., for plaintiff in error.

Jos. D. Barksdale, of Shreveport, La. (H. B. Warren, of Shreveport, La., and W. D. Goff, of Arcadia, La., on the brief), for defendant in error.

Before WALKER and BRYAN, Circuit Judges, and BARRETT, District Judge.

BRYAN, Circuit Judge.

This is an action on an oral contract of fire insurance. A jury was waived in writing, and the district judge made special findings of fact in accordance with provisions of sections 649 and 700 of the Revised Statutes.1 The defendant insurance company also tested the question whether the entire evidence was sufficient by requesting a judgment in its favor. The district judge denied the request and entered judgment for plaintiff in the sum of $8,000, with interest.

About the 1st of May, 1922, plaintiff let a contract for the erection of a building for $10,725; the contractor to furnish the labor and materials. On May 21 the general agent of defendant wrote to the local agent to make an effort to secure insurance on the building for defendant. The local agent called upon plaintiff, and she accepted from him a policy for $2,500, dated June 21, which ran for a period of 60 days, or until August 21. This policy provided what is called builder's risk insurance, loss payable to the contractor as his interest might appear. During the construction of the building, this first policy expired, and no new insurance was taken until the latter part of September, when defendant's special representative and its local agent solicited further insurance. They made an examination, and offered to insure the building in its then uncompleted condition for any amount up to $9,000. Plaintiff informed the agents that she would advise them the amount of insurance she would need, and within a day or two she went to the office of the local agent, but not finding him in left on his desk a note, dated September 29, reading as follows: "Please write policy on my hotel building for amount of $8,000. I called at your office and you were not in, so left this note so you will attend to it when you come in." When the agent returned to his office, he found plaintiff's note, and stated that it was his intention to issue a policy, but that he neglected to do so. The building was destroyed by fire on October 3, and the plaintiff learned shortly thereafter that the policy had not been issued.

The petition contained an allegation to the effect that the agents solicited the plaintiff to take out a policy in the sum of $9,000, that she took the matter under advisement, and during the next day called at the local agent's office to accept insurance for $8,000.

The local agent testified, over objection, that it had been his custom to retain in his safe 90 per cent. of the policies of his customers. Notice of the loss was promptly given. There was no evidence that the building contractor had any claim or right to receive any part of the insurance.

The contentions in support of the assignments of error are: (1) That the contract of insurance was unenforceable because not in writing; (2) that the parties did not agree upon the time during which the insurance was to be in force, or upon the premium to be paid; (3) that the court erred in admitting in evidence the policy for $2,500 which had expired; (4) that evidence was inadmissible to prove, first, that defendant's agents agreed that the contract of insurance should be consummated upon the amount thereof being stated by plaintiff, because the petition did not contain an allegation to that effect, and to prove, secondly, that defendant's local agent usually kept in his safe insurance policies belonging to his customers; and (5) that the...

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10 cases
  • Lumbermen's Mut. Ins. Co. v. Slide Rule & Scale Eng. Co., 9775-9777.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 17, 1949
    ...perfected and transmitted'." See also Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222, 80 U. S. 222, 20 L.Ed. 617; Hartford Fire Ins. Co. v. Tatum, 5 Cir., 5 F.2d 169; National Liberty Ins. Co. of America v. Milligan, 9 Cir., 10 F.2d 483; Aetna Ins. Co. of Hartford, Conn., v. Licking Valley ......
  • Bales v. General Insurance Co., of America
    • United States
    • Idaho Supreme Court
    • June 29, 1933
    ... ... 2 ... Agreement for renewal of fire policy held not void for ... indefiniteness as to identity of insurer, ... (Bridges v. St ... Paul Fire & Marine Ins. Co., 102 Neb. 316, 167 N.W. 64, ... L. R. A. 1918D, 1199; Houser v ... Co. v. Licking Valley Mill. Co., ... 19 F.2d 177; Hartford Fire Ins. Co. v. Tatum, 5 F.2d ... 169; American Cent. Ins. Co. v ... ...
  • Lauhoff v. Automobile Ins. Co. of Hartford, Conn.
    • United States
    • U.S. District Court — Eastern District of Illinois
    • August 29, 1944
    ...the papers are being perfected and transmitted." See also Union Mut. Ins. Co. v. Wilkinson, 80 U.S. 222, 20 L.Ed. 617; Hartford Fire Ins. Co. v. Tatum, 5 Cir., 5 F.2d 169; National Liberty Ins. Co. v. Milligan, 9 Cir., 10 F.2d 483; Aetna Ins. Co. v. Licking Valley Milling Co., 6 Cir., 19 F.......
  • Hamacher v. Tumy
    • United States
    • Oregon Supreme Court
    • May 11, 1960
    ...Home Ins. Co., 1876, 94 U.S. 621, 24 L.Ed. 298; Globe & Rutgers Fire Ins. Co. v. Draper, 9 Cir., 1933, 66 F.2d 985; Hartford Fire Ins. Co. v. Tatum, 5 Cir., 1925, 5 F.2d 169; Globe & Rutgers Fire Ins. Co. of New York v. Eureka Sawmill Co., 1933, 227 Ala. 667, 151 So. 827; Rezac v. Zima, 191......
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1 books & journal articles
  • The Lost or Missing Insurance Policy
    • United States
    • Colorado Bar Association Colorado Lawyer No. 22-6, June 1993
    • Invalid date
    ...record insurance coverages probative), as reported in Ostrager and Newman, supra, note 2 at § 17.02. 32. Hartford Fire Ins. Co. v. Tatum, 5 F.2d 169, 171 (5th Cir. 1925) (in action on oral contract of insurance, prior policy between same parties was admitted where the court found that the p......

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