Nutting v. Minn. Fire Ins. Co.

• Decision Date: 10 December 1897
• Parties: NUTTING v. MINNESOTA FIRE INS. CO.
• Court: Wisconsin Supreme Court

98 Wis. 26

73 N.W. 432

NUTTING

v.MINNESOTA FIRE INS. CO.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by C. W. Nutting against the Minnesota Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought for the recovery of a loss sustained by the plaintiff on his hotel building and barn at Midway, Wis., under a policy alleged to have been issued by the defendant company to him, set out in the complaint; and the question vital to the case is whether the alleged policy ever became an operative and binding contract, the defendant denying that it was ever in force. Harrison Griswold testified on behalf of the plaintiff, in substance: That he was a member of the firm of Haloway & Griswold, in the insurance business, about three years, and that the firm received from the plaintiff a verbal application about September 26, 1895, for some insurance, and that he told plaintiff that they could not insure the property; that he thought Magill & Burke would carry it, as they had carried it one year before. He applied for $1,000 insurance, and left with them the money to pay for it. Before October 1st, witness met Mr. Burke on the sidewalk, and talked about the risk in question. “He asked me if they wanted it renewed, and I said, ‘Yes.’ He said he could not put it in the same company that he had carried it in the year before, but would put it in another company. I said that would be all right. The next time I saw him, he brought the policy over to my office, and laid it on the table. I took down the number in my register of the policy, and then he said he would like to keep it a few days, because he did not know whether the company would carry it or not, as other companies had refused to carry country property. So he took the policy home with him, but was to let me know whether the company carried it or not.” That he did not think he informed him at that time that the policy had been paid for. They “had been dealing with the firm of Magill & Burke, so that charges were made against our firm for policies issued at our request.” That they had carried this same property before. “I didn't hear anything about that policy till after the fire. I then went over to Mr. Burke's office to see about the policy. I was informed there that the policy had been canceled. I had never heard anything of the cancellation of that policy prior to that time. The premium that I received from the plaintiff was in my possession all the time. I never paid it to Magill & Burke. Met Burke on the street a number of times after he took the policy away. I never asked him anything about it. I never offered to pay Magill & Burke any premium on this policy. I don't think they ever presented a bill. My idea was that he had sent the policy up to Mr. Nutting. He didn't deliver the policy to me. I know positively that that policy was never left in my office for any length of time. It was not in my office from the 1st to the 10th of October. It was like this: He brought the policy in to me. I took the number down as I have it in this book, and he said he would like to keep it two, three, or four days, to see whether the company would carry it or not. If they didn't, he would let me know. That is customary. I understood he would bring the policy back to me.” At the close of the testimony the defendant moved for a nonsuit upon the ground that the testimony showed that the policy was never delivered to take effect. This motion was denied. James C. Moody, secretary of the defendant company, testified that a book which he produced showed a daily report from Magill & Burke on the property owned by Mr. Nutting. The entry is as follows: “The number is ‘54,557, void. C. W. Nutting, dwelling and barn, Midway, Wis., Oct. 5, 1895, one year 1896,-$1,000.’ I cannot state from that when that daily report was received at our office. The first record was placed here when the daily report came in, and the second one, marked ‘void,’ and erased, was on account of the policy having come in as void,-not in force. I judge that the policy was marked ‘void’ after the policy came back to us,-from the record.” Mr. Burke, of the firm of Magill & Burke, testified to the request of Mr. Griswold to renew the insurance on the property. That he told him that they could not, as they were not agents; that they had one company writing outside business (the Minnesota Fire), but it was questionable whether they would take the hotel risk at Midway, and he said that he would submit the question to them, write the policy, and send in a report right away, so they would have time, “before the policy goes into effect, to either accept or decline the risk.” He said that was all right. This was October 1st. Their policy expired on the 5th. “We wrote the report and sent it off on the 1st. The record of the compact office shows our report went through on the 1st. I got a reply on the 3d as follows: ‘Minneapolis, Oct. 3, 1895. Messrs. H. B. Magill & Burke, La Crosse, Wis.-Dear Sirs: 54,557, C. W. Nutting. We are in receipt of above daily report, covering a thousand dollars in Midway, Wis. We beg to say we are not writing outside business in your section in towns of less than 300 population. We therefore have to ask you to relieve us of liability under above policy. Send same to us at your early convenience. Very truly, yours, James C. Moody, Sec'y & Manager.”’ Further testifying, the witness Burke said that: “At the time we sent off the report, we wrote the policy on the 1st day of October, and I delivered it in person to Mr. Griswold on that day. Told him, when I handed it to him, pretty much what I told him when he gave us the order for the insurance,-that it was doubtful whether the company would carry it, and I would like to have him hold the policy, and not deliver it to Nutting, till we got word from the company, one way or the other, about it. He said he would do so. Upon receipt of this letter, as soon as I got through with my mail, on the same day, I took this letter, and started over to Mr....