Miller v. Liberty Ins. Co.

• Decision Date: 27 October 1965
• Parties: Daniel N. MILLER v. LIBERTY INSURANCE COMPANY.
• Court: Maine Supreme Court

Page 831

213 A.2d 831

161 Me. 438

Daniel N. MILLER v. LIBERTY INSURANCE COMPANY.

Supreme Judicial Court of Maine.

Oct. 27, 1965.

Carl O. Bradford, Freeport, for plaintiff.

Lawrence P. Mahoney, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, MARDEN and RUDMAN, JJ.

MARDEN, Justice.

On appeal by the plaintiff to the entry of judgment for the defendant notwithstanding a jury verdict for the plaintiff.

The case arises out of the following facts:

The plaintiff and the defendant, a corporate insurance agent and broker, had business relations prior to March of 1963 in which the defendant had placed collision insurance for the plaintiff on a 1962 car for the period expring March 8, 1963. In February of 1963 plaintiff advised Mr. Franklin P. Liberty, President and major stockholder of the defendant company, that he had a new car upon order, that he did not wish the existing insurance to be renewed and that he would notify defendant when the new car arrived. Plaintiff testified that at the same visit to defendant's office, Mr. Liberty executed an application for both collision and liability insurance on the new vehicle, which application embodied everything except the serial number, make, color and price of the new car. He testified that Mr. Liberty told him that when the new car came in it would be covered with collision and liability insurance upon the defendant's office receiving the data not then known.

At the time of this conversation plaintiff testified that he was advised upon delivery of the new car to contract either Mr. Liberty, or a Mr. Reny Marcotte, who was associated with the defendant company.

Plaintiff accepted delivery of his new car from Marcotte Chevrolet (Sales Agency) on March 28, 1963 and the purchase being financed, it was necessary for the car to be covered by collision insurance before it left the vendor's premises. Plaintiff testified, which testimony is confirmed in some respect by other employees at the vendor's garage, that on that date he placed a telephone call for the Liberty Insurance office, a woman answered who stated that neither Mr. Liberty nor Mr. Marcotte was in, and to this woman the plaintiff related the reason for his call and gave her the data which he had been told to report on the new car.

It developed that the person answering the call, filed (dialed) for Liberty Insurance, was an operator at a phone answering service ('Anserphone') which served defendant during periods when the office phone was not attended.

Representatives of Anserphone service testified that they had recorded a phone call on March 28, 1963 from Marcotte Chevrolet for Reny Marcotte with a simple message 'that said to have somebody call someone else.' From information which Mr. Liberty procured from Anserphone when the claim involved in this litigation arose, Mr. Liberty told plaintiff that the message received by Anserphone for Mr. Reny Marcotte to call Marcotte Chevrolet was received by his office at 1:32 p. m. on the date in question.

Between the February 1963 conversation and March 28, 1963 Mr. Marcotte had severed his business connection with the defendant and had his own insurance accounts. Messages for Mr. Reny Marcotte, such as the reference message, were normally relayed to Mr. Reny Marcotte whose office was adjacent to defendant's.

The message recorded by Anserphone was not identified with plaintiff or data such as serial number, color and price of an automobile. From the date in February when the discussion about insurance occurred between plaintiff and Mr. Liberty to July 17, 1963, there was no communication between the parties. Plaintiff received neither written insurance policy nor demand for payment of premium.

On July 17, 1963 plaintiff was a party to a collision which damaged his vehicle and gave rise to liability claim against him. Upon contacting Mr. Liberty of defendant company, he was informed that the car was not insured. Plaintiff, by his complaint, seeks to recover as damages for breach of defendant's alleged contract to insure $1,533.44 collision loss and $425.79 liability claim. The jury found for the plaintiff and assessed damages in the amount of $1,224.04. Upon motion properly premised, the presiding justice ordered judgment for the defendant notwithstanding this verdict. Plaintiff's appeal brings the case here.

The authority of defendant as both insurance agent and broker and the authority of Anserphone as agent of defendant is not questioned.

The content of the conversation between the plaintiff and defendant's representative in February, what was done relative to an application for insurance for the later-to-be-acquired car, the alleged arrangement for identifying data on the new car to be transmitted to defendant, the detail of the message allegedly left with Anserphone, and the extent to which the message was relayed to defendant, were subjects of controversy. They were jury questions. There was evidence to justify the jury in accepting the narration of the transaction as given by the plaintiff. They so found. This promised insurance was not provided, as a result of which plaintiff was exposed to claims which he paid and for which he now contends defendant is liable.

The defendant urges that assuming the facts as found by the jury, the defendant was not an insuring company, and the jury's factual conclusions created a legal situation wherein the plaintiff received only temporary insurance subject to defendant's, within a reasonable time, preparing, as agent, a written insurance contract with a company which it represented, or procuring, as broker, a written insurance contract from another company. It contends that the period from March 28, 1963 to July 17, 1963 so far exceeded this 'reasonable time' that the plaintiff was chargeable with notice that he had no insurance. It argues that what is a 'reasonable time' from undisputed facts is a matter of law for the trial court and that the direction of judgment notwithstanding the verdict was correct.

Plaintiff replies that inasmuch as the question of reasonable time was submitted to the jury, with proper instructions, that the jury verdict should stand and that this court should reverse the judgment notwithstanding the verdict, reinstate the jury verdict, and direct entry of judgment thereon. Rule 50 M.R.C.P.

The case was impleaded, tried and submitted to the jury under the law of contracts and, more specifically, upon the issue of whether the business relationship between the parties created a parole contract for temporary insurance, and, if so, resulting questions of length of time that such...