Morrison v. Ins. Co. of N. Am.

• Court: New Hampshire Supreme Court
• Writing for the Court: DOE, C. J.
• Citation: Morrison v. Ins. Co. of N. Am., 7 A. 378, 64 N.H. 137 (N.H. 1886)
• Decision Date: 30 July 1886
• Parties: MORRISON and others v. INSURANCE CO. OF NORTH AMERICA.

7 A. 378

64 N.H. 137

MORRISON and others

v. INSURANCE CO. OF NORTH AMERICA.¹

Supreme Court of New Hampshire.

July 30, 1886.

Reserved case from Grafton county.

Assumpsit on a policy of insurance. Special verdict. The facts are stated in the opinion.

Bingham, Mitchells & Batchellor and Aldrich & Remick, for plaintiffs.

Belden & Ide and Brew, Jordan & Carpenter, for defendants.

DOE, C. J. January 31, 1871, the plaintiff H. H. Morrison, who then was, and for some time had been, engaged in soliciting applications for fire insurance policies to be issued by the defendants, prepared and signed the plaintiffs' application, and sent it, with three others, to Hopkins, another solicitor of the defendants, at St. Johnsbury, Vermont. The next day, February 1st, at St. Johnsbury, Hopkins left the four applications at the office of Shaw, a general agent of the defendants, authorized to issue policies. The jury found that Shaw accepted the plaintiffs' applications of February 1st. Hopkins was authorized by the plaintiffs to receive their policy and forward it to them. At the trial the plaintiffs introduced a letter, dated February 3, 1871, written and signed by Hopkins at St. Johnsbury, and sent by him to the plaintiff H. H. Morrison, at Haverhill, New Hampshire, where the plaintiffs lived, and where their property was situated, in which letter Hopkins says:

"Your applications for insurance for" (the plaintiffs and three others) "are received, and insured from to-day.

Amount of premium

$48 00

4 policies and stamps

7 00

$55 00

Your commission, 10 per cent., on premiums,

4 80

$50 20

If not; righi, please inform me. You will piease nave the pay ready, ana I will send by express Friday. I had to make some small alterations in your application."

The policy declared on, intended for the plaintiffs, and dated February 6, 1871, was written by a clerk in Shaw's office, and placed in a desk where Hopkins kept his papers, but was not sent to the plaintiff. The jury found it was delivered to Hopkins as agent of the plaintiffs. Property described in the policy and application, and found by the jury to be of the value of $1,009.35, was burned February 10, 1871. The defendants paid the plaintiffs $600; and the plaintiffs signed the following receipt written, upon the policy:

"Received of the Ins. Co. of North America, by the hand of Geo. S. Shaw, agent, six hundred dollars in full for all the claims for loss of damage under this policy, and the same is hereby surrendered to the Co., to be discharged forever.

"St. Johnsbury, Vt, February 28, 1871."

The jury found the settlement was obtained by the defendants' fraud. The only material counts are in assumpsit, and all the counts in that form of action are on a written contract of insurance described as a policy, signed attested, and countersigned by the defendants' agents. On this contract the suit is brought, more than six years after the alleged breach. To a plea of the statute of limitations the plaintiffs' reply is the defendants' fraudulent concealment of the plaintiffs' cause of action; and the jury find the defendants fraudulently concealed from the plaintiffs the existence of the insurance from February 1, 1871, to October 20, 1877.

"The very term 'policy' imports that the party insured holds a written instrument to which that name has been given." Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305, 308. The making of the contract declared upon, being denied by the general issue, is a fact to be proved by the plaintiffs; and this fact is not found in any part of the verdict except the affirmative answer to question, "Was the policy delivered to Hopkins as agent for the plaintiffs?" Upon the facts stated in the case this answer cannot be understood to mean anything less than that Hopkins was authorized by the plaintiffs to receive the policy as their agent; that, in the exercise of his authority as their agent, he did receive it; and that, by its delivery to him, the contract declared on was made. If the verdict does not mean this, this essential fact of the making of the alleged contract is not found, and the defendants are entitled to judgment.

The finding that the defendants concealed the existence of the insurance from the plaintiffs cannot be fairly understood to mean that the defendants concealed the existence of the policy from the plaintiffs' agent when they made the contract by delivering the policy to him. The plaintiffs sent their applications to Hopkins, to be presented by him to the defendants. By Hopkins' letter, which the plaintiffs received, they were informed that he had received their application; that he had to make some small alterations in it; that it had been accepted; that, by its acceptance, they were insured; and that he would send them the policy by express on a certain day, when they would be expected to pay the premium, less the commission of 10 per cent. due one of the plaintiffs as soliciting agent. There is no room for a conjecture that Hopkins was authorized to conclude the contract by receiving the promised policy in ignorance of its existence.

Nothing is stated in the case tending to take the transaction out of the rule that knowledge and intention are the gist of a contract, and that the question whether the changed possession of a policy is a delivery binding the parties by making the contract written in it is a question of knowledge and intention. There is such a delivery if both parties, "or their authorized agents," understand the writing passes from one to the other as a token that the negotiation is concluded, and as evidence of an operative contract. Canning v. Pinkham, 1 N. H. 353, 357, 358; Barns v. Hatch, 3 N. H. 304,...