Michigan Fire & Marine Ins. Co. v. Wich

• Decision Date: 10 January 1896
• Citation: 8 Colo.App. 409,46 P. 687
• Court: Colorado Court of Appeals
• Parties: MICHIGAN FIRE & MARINE INS. CO. v. WICH. [1]

46 P. 687

8 Colo.App. 409

MICHIGAN FIRE & MARINE INS. CO. v. WICH. ^[1]

Court of Appeals of Colorado

January 10, 1896

Appeal from district court, Arapahoe county.

Action by John Wich against the Michigan Fire & Marine Insurance Company on a policy of insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles J. Hughes, Jr., and Tyson S. Dines for appellant.

Stuart D. Walling and C.M. Bice, for appellee.

BISSELL J.

This is evidently one of a series of suits brought by the same plaintiff against various insurance companies to recover the loss resulting from the destruction of a brewery property in 1889. The insurance was taken out at the same time, to wit early in February, 1889, through the insurance agency of Perkins, Hart & Co., of Denver. The total amount of insurance was $15,000, a part of which was represented on policies issued by the companies of which this firm were the representatives, and part of it by policies which that firm procured through Packard & Piper, the representatives of the other corporations. The plaintiff is the same in the different actions. Probably the companies all concurred in contesting the validity of the policies, and it would presumably be ample for us to refer to the antecedent suit for a statement of the facts which have been developed by the litigation. To make the present appeal intelligible, however we shall briefly set forth some of the most salient features of the controversy, point out the difference between the situation in the present case and that existing when the other case was before us, though referring generally to it and to the opinions therein for a complete history of the litigations and for a more elaborate statement of the law. The other case is Sun Fire Office v. Wich wherein two opinions were written. They are found in 39 Pac., at page 587 et seq., and will appear in the sixth volume of the Court of Appeals Reports (page 103). The property involved was a brewery, situated at Florence. It was bought in the latter part of 1888 by Wich, who negotiated the purchase, and paid the owner therefor $4,000 in cash and gave a mortgage for a little upwards of $8,000 for the unpaid portion of the purchase money. The title was taken in the names of Wich, Ell, Voght, and Hess, who joined with Wich in giving the notes which represented the unpaid portion of the purchase money. The principal contention, and the real basis for the reversal of the judgment which Wich got against the Sun Fire Office, turned on the proof respecting this particular matter. On the former trial it was not made clear what the circumstances were under which the purchase was made, nor the extent and character of Wich's actual interest, or his equitable title, nor was the matter settled by the verdict. In the present case it was in evidence that the negotiations for the purchase were made and completed by Wich under an agreement between him and the other three persons, substantially, that he should make the purchase, and that they should have an interest of a definite amount, provided within the next 60 days thereafter they paid their part of the purchase money. The agreement was not in writing, and the proceeding was not aptly carried on for the perfect protection of Wich's interests. The nature of this contract was not deemed settled by the former judgment, because the question was not submitted with definite instructions respecting it. This has been entirely cured by the present trial, and the verdict absolutely determines the fact to be that Wich bought the property, and had the sole interest in it, subject only to the agreement that the other three were to become co-owners on the performance of a condition precedent settled by the contract of purchase. By the agreement, the parties would become vested with an absolute title only on performance of the condition. These parties did not pay the money, and subsequently transferred the legal title which they acquired by the conveyance from McCandless. Wich assumed the notes, and was alone obligated to pay the balance of the consideration. The finding of the jury on this question relieves the case of a very great difficulty. Another equally troublesome question was also resolved against the insurance company. The jury not only rendered a general verdict, but were required by the company to answer a very large number of special questions, every one of which were answered adversely to the company's claim. But for the special findings, we might be still embarrassed by some matters presented in the record. According to them, Wich constituted the Arkansas Brewery Company at the date of the execution of the policy, the 4th of February, 1889, and was the sole party in interest when the fire occurred, the 5th of September following. The value of the brewery building and contents was found to be a little upwards of $24,000, which is very close to the value stated by Wich when the policies were procured. The question of the circumstances under which the policies were delivered was also settled. At the time of the original negotiations for insurance an application was prepared and signed by Wich, and thereafter all the policies, including the one sued on, were made out and delivered to Wich, who paid the premium. This application, however, does not figure in the suit. It was not produced, its terms were not relied on, and we are not advised as to what it was. Probably the present policy was not issued on the strength of it, but presumably with the expectation of subsequently getting an application to file in the office. At all events, there was a second application made out by the agents themselves, and taken to Wich, who signed it, as he states, and as the jury concluded, without information as to its contents, and on the request of the agent, Carleton. All the statements which Wich made concerning the property and its value, its surroundings and circumstances, the jury found to be true. No other facts seem necessary to a requisite comprehension of the case, and, if a fuller understanding is desired, the antecedent opinions can be referred to.

We shall make no attempt to follow and dispose of the 38 different propositions stated in the arguments of counsel. The labor would subserve no useful purpose, and we shall content ourselves simply with observing that we have carefully examined the record with reference to the law which is attempted to be applied, and have reached a general result which compels the affirmance of the judgment. We do not feel obligated to do more than dispose of the principal questions suggested. The alleged discrepancy between the application, the statements in the policy, and the facts as developed by the evidence will be entirely disregarded. The findings relieve us of the labor. If the policy in suit had been issued on the original application, and that put in evidence, we might then have been compelled to inquire whether its statements were borne out by the proof, whether they were warranties, and whether or not the company was released from any obligation because of an alleged breach. On the trial the present policy was assumed to have been issued on the second application. Strenuous objection was interposed to the introduction of the policy, because it was unaccompanied by this application. The objections were not well taken, because the application followed the issuance of the policy. Evidence enough to convince the jury that the policy had been delivered on the faith and strength of an agreement to furnish an application or statement as a basis for the insurance was not produced. Under these circumstances it is tolerably well settled the application is of little consequence, and is in reality no part of the proof which the plaintiff must make to sustain his case. Le Roy v. Insurance Co., 39 N.Y. 56; Rankin v. Insurance Co., 89 Cal. 203, 26 P. 872.

The jury found the policy was not issued on a written application. Perkins, Hart & Co. procured part of the insurance from Packard & Piper, who were agents of other companies. Wich did not apply to Packard & Piper for this insurance, and in reality had nothing to do with the making out of an application for it. He was approached by Carleton, who had some connection with Perkins, Hart & Co. He had examined the property, solicited the insurance, and practically ascertained the amount which the companies would probably be willing to carry. It is quite possible Carleton would, for some purposes, be treated simply as a solicitor, and with reference to the policies issued by Perkins, Hart & Co. he may have occupied this position. In reality, and in the procurement of the policy in suit, he appears to have been with that firm, the practical representative of Packard & Piper, who were the conceded agents of the appellants. What he did with reference to the second application, what he said about it to Wich, and the circumstances of its procurement, in our judgment conspire to make him the representative of Packard & Piper, and bind them, as the agents of the company. Of course, there is a wide discrepancy in the testimony between Carleton, Shreve, and Wich as to the circumstances attending the second application. Expressing no personal opinion respecting it, we accept the verdict, and conclude that Carleton...