Lungstrass v. German Ins. Co.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: BLISS
• Citation: 48 Mo. 201
• Decision Date: 31 July 1871
• Parties: EUGENE LUNGSTRASS, Respondent, v. GERMAN INSURANCE COMPANY, Appellant.

48 Mo. 201

EUGENE LUNGSTRASS, Respondent,
v.
GERMAN INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

July Term, 1871.

[48 Mo. 202]

Appeal from Pettis Circuit Court.

Finkelnburg & Rassieur, and Crandall & Sinnet, for appellant.

I. The contract of insurance never was consummated. This policy could have become binding only by the dispatch of a notification of acceptance directed to the insurer, by mail or otherwise, before the fire. (Phill. Ins., § 17; Taylor v. Merch. Fire Ins. Co., 9 How. 390; Wallingford v. Home Mutual Fire Ins. Co., 30 Mo. 46; Neville v. Merch. & Manuf. Ins. Co., 19 Ohio, 459.) Assent must be signified to the other contracting party, and where the parties are at a distance such signification is by letter, dispatch, or other missive, put under way to the other party. (2 Dutcher, 280; 46 Mo. 366.) In this case there was no union of minds, and the defendant could not have held plaintiff for the premium. (Ocean Ins. Co. v. Carrington, 3 Conn. 357.) Where premiums cannot be enforced in law, the contract is not binding on the insurance company. (Neville v. Merch. & Manuf. Ins. Co., supra.)

II. Plaintiff cannot shield himself behind his agency. Having conducted the whole matter of negotiation from its inception with defendant directly by correspondence, he cannot now seek to bind defendant by any pretended private memorandum made in a memorandum book of his own, of which no notice was sent to defendant--of which defendant knew nothing, could know nothing, and which remained under plaintiff's control, to be made or unmade as he pleased. Indeed, he could not in law have acted as agent of both parties under any circumstances. Such contracts are void. “An agent of an insurance company, however broadly his authority may be expressed, has no power to act for

[48 Mo. 203]

himself. He cannot make a contract in which he acts directly for himself, and also as agent for the company.” (Bentley v. Columbia Ins. Co., 19 Barb. 595; Utica Ins. Co. v. Toledo Ins. Co., 17 Barb. 133.)

Phillips & Vest, for respondent.

The company, by the terms of its letter, charged plaintiff with a premium of $99.35. Could it thus hold itself in the double vantage-ground of claiming this premium if there had been no fire on the 7th of November, 1867, and then not be liable to him in the event of a fire?

Furthermore, when plaintiff received the altered policy, and charged himself with the premium of two per cent., he had not received the letter purporting to have been written on the 4th of November, 1867; and of course the entries made by him on the 6th of November, prior to the fire, were pursuant to this letter, and in the usual course of business. The court properly declared the law in the instructions given for the respondent. (42 Mo. 38, 41; 5 Ind. 96; Chase v. Ham. Mut. Ins. Co. of Salem, 22 Barb., S. C., 527; Taylor v. Mer. Fire Ins. Co., 9 How. 390.)

Defendant claims that plaintiff should have notified the company before the fire of his acceptance of the policy at two per cent. This theory of the appellant wholly ignores the well-settled principle that during a negotiation of this character, whenever the aggregatio mentium takes place, the contract of insurance is complete. (Ang. Fire and Life Ins. 69, § 34; Keim et al. v. Home Mut. Ins. Co., 42 Mo. 41.)

When the company first sent up the policy on the 28th October, they did not contemplate that the assured should notify them of his acceptance, for they informed him in their letter that they had charged him with the premium, and directed him to sign the policy as agent. He never notified the company of the acceptance of the other two policies, and yet they received the premiums November 13th, and considered the parties insured from the 26th of October. (Ang. Fire and Life Ins. 83, § 47.)

[48 Mo. 204]

BLISS, Judge, delivered the opinion of the court.

The plaintiff holds a policy of insurance issued under the following circumstances: He had been appointed agent of defendant for Sedalia, and on the 28th of October, in response to applications obtained and forwarded by him, the secretary sent him policies numbered 294, 295 and 296, the first being a policy upon his own goods. The premium charged was two and a-half per cent., and, being dissatisfied with the rate, the plaintiff sent back his own policy for a reduction. It was reduced to two per cent. and returned, and the...