Marysville Mercantile Co., Ltd. v. Home Fire Ins. Co.

Decision Date16 February 1912
Citation121 P. 1026,21 Idaho 377
PartiesMARYSVILLE MERCANTILE COMPANY, LTD., a Corporation, Respondent, v. HOME FIRE INSURANCE COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court


(Syllabus by the court.)

1. Where a local agent of a fire insurance company has power to write, issue and sign insurance policies, and is furnished by the company with forms of policies to be written and to be signed by the agent, full power is conferred upon such agent to write, issue and deliver policies of insurance upon application, and such policies become effective upon the writing and delivery by such agent, unless the company cancels such policies, and the authority of such agent extends to renewals of policies previously issued upon request of the insured, and they become effective upon the expiration of the original policy.

2. Where an agent of a fire insurance company, with authority to write policies, makes an agreement with an insured that he will write a policy of insurance and look after it and continue it during the life of a loan made to the insured and the policy is written and left with the agent for safekeeping, such agent has authority to renew said policy and continue the insurance, and when a new policy is issued and retained by the agent for safekeeping, it is a valid policy and binds the fire insurance company until canceled.

3. Where an agent for a fire insurance company has power to issue and renew policies, and is intrusted with forms of policies to be written, issued and delivered, after being signed by such agent, and such agent instructs a clerk to issue a policy, and the policy is issued and left with the bank, of which said agent is cashier, for safekeeping, in accordance with an agreement with the insured, the contract of insurance becomes complete and ef- fective and the actual personal delivery of such policy to the insured is not required, as the possession of the person with whom such policy is to be left for safekeeping under such agreement between the agent and the insured is equivalent to the possession of the insured.

4. The payment of premium upon an insurance policy at the time the policy is delivered is not a condition precedent to the existence of a policy of insurance, as the company may through its agent, extend credit for the premium, and if this is done, the contract of insurance will be binding upon the company without the actual payment of the premium.

5. Where a special agent of a fire insurance company, with authority to adjust losses by fire upon property insured by the company, and acting as such agent and adjuster, in company with an adjuster of other companies and the insured makes an adjustment and settlement of the loss, and a compromise is reached between the insurance companies and the insured, and by such agreement the amount of such loss and the amount to be paid by each company is fixed and agreed to, and the insured is induced to accept such compromise and agrees to the same, the insurance company is bound by the acts of the adjuster, and the sum agreed upon may be recovered from the company.

6. Where a policy of fire insurance contains the provision that "no suit or action on the policy for the recovery of any claim shall be sustainable in any court of law or equity.... unless commenced within twelve months next after the fire," an objection to the maintaining of the suit, because not commenced within the time fixed by the policy, cannot be raised and urged as error, when such objection is made in this court for the first time.

7. The evidence in this case examined and found sufficient to support the verdict of the jury and the judgment.

8. A judgment will not be reversed by this court on the alleged error that the evidence was not introduced in proper order, unless such alleged error appears to have been prejudicial, as the order of proof is a matter largely within the discretion of counsel.

9. Where instructions are requested upon the trial by either party to the suit, and such instructions are refused, in order for this court to review such instructions and determine whether or not the trial court erred in refusing the same, it is necessary for the appellant to bring to this court upon appeal all the instructions given upon the trial.

APPEAL from the District Court of the Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judge.

An action to recover upon an insurance policy. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment modified. Costs of this appeal awarded to the respondent.

Moyle & Van Cott, and Soule & Soule, for Appellant.

There was never any consideration for the agreement, or the issuing of the policy, and the minds of the parties never met. Neither the insurance company nor its agent executed a contract of insurance, or was conscious of the fact that any agreement to that effect had ever been made. Neither was there a policy of insurance issued or delivered, or ever in the possession of respondent or its agent. (Harper & Co. v. Ginners' Mut. Ins. Co., 6 Ga.App. 139, 64 S.E. 567; London & L. Fire Ins. Co. v. Turnbull, 86 Ky. 230, 5 S.W. 542; Clark v. Ins. Co., 89 Me. 26, 35 A. 1008, 35 L. R. A. 276; Mutual Life Ins. Co. v. Young, 90 U.S. 85, 23 L.Ed. 152.)

"An adjustment, in order to be binding, must be made with full knowledge of all the facts material to the right of the insured to recover." (Remington v. Insurance Co., 14 R. I. 245.)

The adjustment was made, or rather the amount of loss determined, without regard to the liability of the appellant, as is evidenced by the nonwaiver agreement. The liability of the company was to be determined later. (Fame Ins. Co. v. Norris, 18 Ill.App. 570.)

One relying upon an estoppel in pais must specially plead the same. (8 Ency. of Pl. & Pr. 10; 2 Herman on Estoppel, 1447; Sharon v. Minnock, 6 Nev. 377; Sutherland, Code Pleading, sec. 555; Homberger v. Alexander, 11 Utah 373, 40 P. 260; Leland v. Isenbeck, 1 Idaho 469.)

The estoppel does not apply where the facts are equally well known to both parties. (Western Land Assn. v. Bank, 80 Minn. 317, 83 N.W. 192; Sanborn v. Van Duyne, 90 Minn. 215, 19 N.W. 41; Lash v. Rendell, 72 Ind. 475.)

Gustin, Gillette, Davis & Brayton, and Millsaps & Miller, for Respondent.

Even if the contract of insurance was not in effect at the time of loss, appellant by its action in effecting the adjustment, putting the respondent to expense in making it, and permitting respondent to settle with the other companies represented on less favorable terms than otherwise, is estopped to deny the policy's existence. (3 Cooley's Briefs on Ins., 2739, and cases cited; Georgia Home Ins. Co. v. Allen, 128 Ala. 451, 30 So. 537; Home Ins. Co. v. Marple, 1 Ind.App. 411, 27 N.E. 633; Titus v. Glenns Falls Ins. Co., 81 N.Y. 410 (a leading case); Eagan v. Aetna Fire & Marine Ins. Co., 10 W.Va. 583.)

As to permitting payment to other companies upon the adjustment as estoppel, see Fishbeck v. Phenix Ins. Co., 54 Cal. 522; Gibbs v. Dutchess County Mutual Ins. Co., 66 Hun, 632, 21 N.Y.S. 203; Levy v. Peabody Ins. Co., 10 W.Va. 560, 27 Am. Rep. 598.

Manual delivery of a policy of insurance is not necessary to insure its validity. (1 Cooley's Ins. Briefs, 442; citing N.Y. Life Ins. Co. v. Babcock, 101 Ga. 67, 69 Am. St. 134, 30 S.E. 273, 42 L. R. A. 88; Springfield Fire & Marine Ins. Co. v. Jenkins, 9 Ky. L. R. 932; Mfg. Co. v. Ins. Co., 16 Pa. S.Ct. 91.)

The delivery is sufficient to give effect to the insurance, though the agent retains the policy in his own possession for safekeeping, whether at the request of insured or not, and the policy is not in fact actually given into possession of the insured prior to loss. (1 Cooley's Ins. Briefs, 449; Franklin Fire Ins. Co. v. Colt, 20 Wall. (U.S.) 560, 22 L.Ed. 423; Tennant v. Travelers' Ins. Co., 31 F. 322; Newark Mach. Co. v. Kenton Ins. Co., 50 Ohio St. 549, 35 N.E. 1060, 22 L. R. A. 768.)

In choosing appellant to write the insurance for which he had contracted, Kruger acted as agent for respondent. (Michigan Pipe Co. v. Michigan Fire Ins. Co., 92 Mich. 482, 52 N.W. 1070, 20 L. R. A. 277.)

Payment of the premium is not a condition precedent to the existence of a policy of insurance, even where specifically made so by the terms of the policy itself. Where credit has been extended to the insured, the policy is nevertheless in force, and the agent relies upon the insured for the payment of the premium. (McCabe v. Aetna Ins. Co., 9 N.D. 19, 81 N.W. 426, 47 L. R. A. 641; Continental Ins. Co. v. Foller, 101 Ill.App. 77; Western Assur. Co. v. McAlpin, 23 Ind.App. 220, 77 Am. St. 423, 55 N.E. 119; Firemen's Ins. Co. v. Kuessner, 164 Ill. 275, 45 N.E. 540.)

The company will be bound by an adjustment or compromise by any officer or agent whom it sends to the insured to represent it in the adjustment of the loss. (4 Cooley's Ins. Briefs, p. 3585, and cases cited; Millers' Nat. Ins. Co. v. Kinneard, 136 Ill. 199, 26 N.E. 368; Fame Ins. Co. v. Norris, 18 Ill.App. 570; Flannery v. State Mut. Fire Ins. Co., 175 Pa. 387, 34 A. 798.)

STEWART, C. J. SULLIVAN, J., Ailshie, J., Concurring.



This action was brought to recover the sum of $ 1,793.68, alleged to be due for damages sustained by the respondent by loss of property in a fire alleged to have occurred on June 15, 1908 under a policy of insurance alleged to have been written and delivered to the...

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