Kor v. American Eagle Fire Ins. Company
| Decision Date | 15 May 1920 |
| Docket Number | 20985 |
| Citation | 178 N.W. 182,104 Neb. 610 |
| Parties | BELLE F. KOR, APPELLEE, v. AMERICAN EAGLE FIRE INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed.
REVERSED.
Charles Battelle, H. F. Guile and C. L. Clark, for appellant.
Berge & McCarty, contra.
The plaintiff recovered in this action upon an alleged parol contract to insure her household goods and piano, and the defendant appeals. She claims the contract in question was entered into in April, 1916, by the Fidelity Underwriters of New York, through J. M. Guile and Henry F. Guile, its agents in Lincoln, Nebraska. In August, 1916, the defendant took over the business and assumed the liabilities of the Fidelity Underwriters, and the Guiles thereafter became the defendant's agents.
The plaintiff's petition sets forth that in the spring of 1916, in consideration of a premium of about $ 21, the exact amount of which she does not remember, but which she promised to pay, the defendant insured the piano in the sum of $ 400 and the household goods in the sum of $ 400, against loss by fire for the period of five years, and agreed to write a policy on its usual form in pursuance of said agreement; and thereafter she moved from Lancaster county to Platte county, Nebraska, and took the insured property with her; that, on November 30, 1917, through her husband and agent, John A. Kor, she informed the defendant of her change of residence and of the removal of the property, and requested that the insurance be made to cover it in Platte county; that at that time she paid, and the defendant accepted, $ 10 upon the premium; and that the property was wholly destroyed by fire on December 11, 1917.
The defendant, in its answer, denied that any contract to insure the property, or to issue a policy thereon, had been entered into as alleged, or that any request had been made of it to make the insurance cover the property after its removal to Platte county; admitted receiving the $ 10 payment, but alleged that it was paid upon a policy of insurance which it was carrying upon a dwelling-house belonging to the plaintiff in Lincoln.
The proof offered by the plaintiff to substantiate the contract consisted of the testimony of her husband that in April, 1916, he went to the office of the Guile agency and told Henry F. Guile that he wanted to insure the property in the sum of $ 400 on household goods and $ 400 on the piano; that Guile made out a list of the household goods, and that he told Guile to write the insurance; that the premium, the exact amount of which the witness could not recollect, was mentioned, but nothing was said about paying it. He stated that Guile asked him if he could write the policy, and that the witness told him he could. The witness further testified that no other communication took place between the plaintiff and the Guile agency until November 30, 1917, when the witness came to Lincoln, and, as he stated, met Henry F. Guile, and remarked to him that he had not paid the insurance premium and that he would pay it; that Guile then asked him if he had the policy, and the witness replied that it had never been sent to him; whereupon Guile searched for the policy, and, not finding it, looked in a book, and said it was $ 400 on the piano and $ 400 on the household goods, and that the premium was $ 21 and some cents; that the witness told him he would pay $ 10 then and the remainder when he returned to Lincoln. He also testified that he instructed Guile to make the policy cover the property in Platte county, and that Guile said he would transfer the insurance right away.
It appears from the record that, while the plaintiff was residing in Lincoln in 1912, she took out a policy of $ 600 on her piano and household goods in the Fidelity Underwriters of New York through the Guile agency. That policy expired in September, 1915, and a new policy for $ 800 was issued on the same property, which, however, was lost and never delivered to the plaintiff, the company obtaining from her a "lost policy voucher," releasing it from liability thereunder. The plaintiff moved to Platte county in April, 1917.
Henry F. Guile denied that his agency had issued, or entered into any agreement to issue, a policy on the property in question after the cancelation of the policy issued in September, 1915. He admitted that he met and talked with Kor on November 30, 1917, and that he collected $ 10 from him at that time. He stated, however, that this was paid upon a premium due upon insurance covering the plaintiff's house in Lincoln, which his agency was carrying. Guile further testified that, after the plaintiff removed to Platte county, her husband at one time requested him to insure the property there, but that he stated that he was not authorized to do so. He denied that anything was said on that subject during the interview November 30, 1917, or that Kor ever talked with him about transferring the insurance to cover the property in Platte county.
The defendant contends that the evidence is insufficient to establish the alleged oral contract of insurance in April, 1916. An oral agreement to insure must be definite as to all of the material terms of the contract. Glatfelter v. Security Ins. Co., 102 Neb. 464, 167 N.W. 572; Bridges v. St. Paul Fire & Marine Ins. Co., 102 Neb. 316, 167 N.W. 64. In order to make a valid contract of insurance, a definite understanding must be reached, and the minds of the parties must meet, as to the company in which the insurance is to be placed, the property to be covered, the amount of the insurance and the duration of the risk, and the premium to be paid must be agreed upon and paid, or exist as a legal charge against the party insured, where the contract of insurance is not conditioned upon payment in advance. Cleveland Oil & Paint Mfg. Co. v. Norwich Union Fire Ins. Society, 34 Ore. 228, 55 P. 435; Todd v. German-American Ins. Co., 2 Ga.App. 789, 59 S.E. 94. The testimony offered on behalf of the plaintiff establishes with sufficient certainty that the insurance was to be placed in the Fidelity Underwriters of New York, the predecessor of the defendant, whose liabilities the defendant assumed. There is no uncertainty in the testimony on behalf of plaintiff as to the property to be covered or the amount of the insurance; but it was lacking in definiteness with reference to the premium and the duration of the risk.
With regard to the premium, the plaintiff's husband testified that in his conversation with Henry F. Guile the amount of the premium--about $ 21--was mentioned, but nothing was said about paying it. In September, 1915, however, the Guile agency wrote a policy for $ 800 in the Fidelity Underwriters on the identical property, which was afterwards canceled. The premium upon this policy was $ 20 for the term of five years. It appeared, furthermore, that in August, 1915, a policy in the same company had been issued upon the plaintiff's dwelling-house in Lincoln, the premium upon which was still unpaid in November, 1917, when, according to the testimony of Henry F. Guile, the plaintiff paid him $ 10 to apply upon it. It is the rule that previous dealings between the parties may be looked to in determining whether a cash...
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