King v. Hekla Fire Ins. Co.

• Decision Date: 20 November 1883
• Citation: 58 Wis. 508,17 N.W. 297
• Parties: KING v. HEKLA FIRE INS. CO.
• Court: Wisconsin Supreme Court

58 Wis. 508

17 N.W. 297

KING

v.HEKLA FIRE INS. CO.

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Dane county.

L. K. Luse, for respondent, E. D. King.

J. H. Carpenter, for appellant, Hekla Fire Insurance Company.

COLE, C. J.

This action is brought to recover damages for a breach of a contract to insure the plaintiff's store or saloon. The property was insured by the defendant company by issuing the usual policy in writing for one year, the risk expiring on the fifteenth day of January, 1882. The claim of the plaintiff is that prior to the expiration of the policy the company, by its duly-authorized agent, agreed to renew the policy, but that the company, after the property was destroyed, early in April, 1882, denied its liability for the loss, and insisted that the policy had never been renewed. The alleged agreement to renew was by parol. The learned counsel for the defendant concedes that a valid contract to insure or to renew a policy of insurance may be made by parol; but he insists that the evidence wholly fails to show that any oral contract to renew was ever actually made. This, of course, raises a simple question of fact upon the evidence. As we understand the proofs in the case, there was sufficient testimony given on the part of the plaintiff on the trial which warranted the jury in finding that the company, by its authorized agent, made a valid contract to renew the policy. There is testimony positive and clear to that effect. It is unnecessary to recapitulate it here. It is true, all this testimony was distinctly and positively denied or contradicted by the defendant's witnesses, especially by the agent who, it is alleged, made the contract. But the probative effect of the testimony, the conflicting statements of the witnesses, and what was the real truth of the matter, were questions submitted to the jury under proper instructions. It is certainly a correct proposition to say that the company could not be held liable for the loss unless a complete contract to renew was made by its agent--a contract that was mutually binding upon the insurer and the insured. The transactions between the agents of the respective parties must have been something more than mere preliminary negotiations or conversations about renewing the policy; they must have resulted in an actual contract to renew the existing policy upon terms well understood at the time. And as the contract to renew was oral, the onus was doubtless upon the plaintiff to prove to the satisfaction of the jury that such a contract was made. The learned circuit court instructed the jury according to these views, and the jury, upon the evidence, found for the plaintiff. This fully disposes of some points which are discussed by defendant's counsel in his brief. There remains to be considered some exceptions which were taken to the rulings of the court in admitting or excluding evidence, in giving certain requests asked on the part of the plaintiff, and refusing some instructions asked by the defendant. We shall not attempt to notice all these exceptions in detail, but barely indicate our views upon the more material ones.

Robine W. King was swore as a witness for the plaintiff. He had acted for the plaintiff in making the alleged contract with the agent of the defendant. He was asked what the plaintiff told him about seeing Blair, the defendant's agent, in regard to insurance, and what instructions were given him as to the transaction of the business. The evidence was objected to, but admitted. The fact that the witness was authorized to act for the plaintiff in the matter was conceded, but it is said he should not have been permitted to testify as to what instructions had been given him. We cannot see any valid objection to the testimony, in view of the purpose for which it was offered. Its plain object was to prove what the contract for the renewal was: its precise terms and conditions. But it is further said the court refused to allow Blair to testify as to what instructions he had...