John R. Davis Lumber Co. v. Scottish Union & Nat'l Ins. Co.

• Decision Date: 24 November 1896
• Parties: JOHN R. DAVIS LUMBER CO. v. SCOTTISH UNION & NATIONAL INS. CO. JOHN R. DAVIS LUMBER CO. v. CALEDONIAN INS. CO. JOHN R. DAVIS LUMBER CO. v. CONTINENTAL INS. CO.
• Court: Wisconsin Supreme Court

94 Wis. 472

69 N.W. 156

JOHN R. DAVIS LUMBER CO.

v.SCOTTISH UNION & NATIONAL INS. CO.

JOHN R. DAVIS LUMBER CO.

v.CALEDONIAN INS. CO.

JOHN R. DAVIS LUMBER CO.

v.CONTINENTAL INS. CO.

Supreme Court of Wisconsin.

Nov. 24, 1896.

Appeal from circuit court, Price county; John K. Parish, Judge.

Actions by the John R. Davis Lumber Company against the Scottish Union & National Insurance Company, and against the Caledonian Insurance Company, and against the Continental Insurance Company. From judgments for plaintiff, defendants appeal. Reversed.

Actions on alleged verbal agreements to insure property owned by plaintiff against loss by fire. The answers put in issue the making of the contracts. The evidence shows that E. W. Winchester, an insurance agent at Phillips, Wis., received an application for insurance on plaintiff's property. He applied to John West, at Oshkosh, to place a part of such insurance, giving him a form of policy, specifying the items of property and rate of insurance. On the 18th day of June, 1894, West applied to Sylvanus Palmer, agent for the defendants at Oshkosh, Wis., giving him the form of policy, to place $10,000 of such insurance among companies represented by him. Palmer did not then agree to place such insurance. The understanding was that he should see what he could do respecting the matter, and notify West later. The evidence further shows that the property was outside the district in which Palmer was authorized to write policies binding defendants; that, for the purpose of determining whether defendants would take the risk or not, he distributed the amount applied for as follows: $2,500 to the Continental Insurance Company, $5,000 to the Scottish National Insurance Company, and $2,500 to the Caledonian Insurance Company. There is evidence tending to show that he sent the usual daily reports to the companies in the usual way; also, that such reports ordinarily indicate that the policies have been written up. The evidence further shows that, in two or three days after the first meeting between Palmer and West, the latter notified the former that defendants would not accept the risks. Part of the loss sued for had occurred in the meantime. The Caledonian Insurance Company notified Palmer, before his last meeting with West, that it would not accept the application, and the other companies did the same, or approved of Palmer's notice to West to that effect, thereafter. At the close of the evidence each defendant moved the court to direct a verdict, which was denied. Verdict was rendered against each defendant, and there was a motion to set aside each such verdict as contrary to the evidence, and for a new trial, which motions were denied. Judgments were rendered against the defendants separately, from which separate appeals were taken.

H. W. Chynoweth, for appellants.

Phillips & Hicks (M. H. Beach, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

A binding verbal contract of insurance may be made without the payment of any premium, or even the making of any report, to the insurance company. That has been repeatedly decided by this court. Zell v. Insurance Co., 75 Wis. 521, 44 N. W. 828;Campbell v. Insurance Co., 73 Wis. 100, 40 N. W. 661. But, to make such a contract, there must be a meeting of minds between the parties thereto, so as to leave nothing to be done thereafter but to execute it as made. There must be an application, though not necessarily in writing. The terms and property must be specified. If the application be made to an agent representing several companies, the particular company or companies to carry the risk must be designated, with the amount each is to carry, and each, by its agent or otherwise, must agree to take the risk,--that is, must make answer to the application, accepting it, direct or otherwise, by verbal communication, or by posting such communication. Without all these elements...