Park & Pollard Co. v. Agric. Ins. Co.

• Decision Date: 09 March 1921
• Citation: 238 Mass. 187,130 N.E. 208
• Parties: PARK & POLLARD CO. v. AGRICULTURAL INS. CO. SAME v. EQUITABLE FIRE & MARINE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 187

130 N.E. 208

PARK & POLLARD CO.

v.AGRICULTURAL INS. CO.

SAME

v.EQUITABLE FIRE & MARINE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 9, 1921.

Report from Superior Court, Suffolk County; James H. Sisk, Judge.

Actions by the Park & Pollard Company against the Agricultural Insurance Company and against the Equitable Fire & Marine Insurance Company, resulting in directed verdicts for both defendants; the case being reported to the Supreme Judicial Court. Judgments ordered for defendants, unless plaintiff is allowed to amend its declarations.White & Barnes and John C. Coughlin, all of Boston, for plaintiff.

Walter L. Came, of Boston, for defendants.

JENNEY, J.

These are two actions of contract to recover upon oral contracts as to insurance against loss by fire of a large stock of bags, of the admitted value of $100,000, owned by the plaintiff and situated in the mill of the Oswego Milling Company in Oswego, New York. The fundamental question is, whether there was sufficient evidence to warrant the jury in finding that there were oral contracts of insurance, or to insure, binding on the defendants. The defendants concede that, if such contracts were made, they received due notices and proofs of loss; that demands had been made upon them, and that payment had been refused. It is beyond controversy that, if made, the contracts were entered into on July 18, 1918, through Edward H. Daggett, an insurance broker acting on behalf of the plaintiff, and Elston F. Wiltse, claimed by the plaintiff to have authority to bind the defendants. The property was destroyed by fire, shortly after midnight, on July 20, 1918.

Daggett testified that, after a preliminary interview at Wiltse's office where the subject of the insurance was discussed, and after securing in behalf of the plaintiff nearly all the insurance which it desired, he had a telephone conversation with Wiltse in which he told him that he still desired to place $12,500 of the insurance, concerning which he had spoken to him in the morning; that Wiltse ‘gave me then the-said he would take $7,500, in the Agricultural and $5,000, in the Equitable Fire & Marine’; that he ‘asked Mr. Wiltse if there was any question about the insurance being binding, and Mr. Wiltse said no * * * and asked whether he should use a * * * form which he had, and I said that I would prefer to have the form sent to him from New York so that all policies would be the same; and asked him to confirm the fact that he was binding this insurance, this $12,500, in these two companies, and he said he would do so’; ‘that the premium on * * * [the] $7,500 policy would be $174.90, * * * and that the premium on the $5,000 policy was $116.00.’ Continuing his testimony as to this conversation, Mr. Daggett further said: ‘I told Mr. Wiltse that I had * * * this $12,500 insurance left and asked him what companies he could give it to me in, but told him I didn't want it in the National of Hartford because it wouldn't stick, and he gave me the Agricultural and the Equitable’; that he asked Wiltse to confirm the insurance in writing but that he never got any such confirmation; that ‘he was absolutely positive that he asked Mr. Wiltse during the telephone conversation * * * whether the lines were binding.’ In the course of his cross-examination the following question and answer occurred:

‘Q. And he gave you that in response to an inquiry made by you as to what companies he thought would take the line? A. He gave me that in response to my request for this $12,500 coverage, not what he thought it would.’

In explaining without objection the meaning of the word ‘form’ used by him, Daggett said in substance that a form was a slip of paper, designed to be attached to the policy, containing the description and the location of the property to be covered by the policy with clauses as to special risks, co-insurance and the maintenance of a sprinkler equipment; and that he told Mr. Wiltse that he would prefer to have the form to be used in the contract sent from New York to be copied from the forms on the policies which were in force, so that they would be like those on others covering the same property.

Wiltse, called as a witness by the defendants, testified that ‘he was in the fire insurance business at Oswego.’ He admitted having a conversation with Daggett relative to the insurance of the plaintiff's property but absolutely denied that he had made the statements to which Daggett testified. His version of what had happened was that negotiations had taken place as to this insurance but that nothing had finally been consummated, and that at the close of the conversation he said to Daggett, ‘Well, send on your forms and I will see.’

He testified concerning his authority to bind the defendants, that when he was appointed agent he received written certificates of authority (introduced in evidence), by the terms of which he was constituted the agent of each defendant, ‘with full power to receive proposals for insurance against loss by fire’ in Oswego; that the certificate of the Agricultural Insurance Company further authorized him to ‘countersign, issue and make endorsements upon policies of insurance signed by the president and attested by the secretary of said company, to collect premiums, and consent to assignments of policies, and to attend to the business of his agency in accordance with the rules and regulations of said company, and such instructions as may be given by its officers'; and that of the Equitable Fire & Marine Insurance Company authorized him to ‘fix rates of premium upon such insurance, receive moneys, to countersign, issue, renew and consent to the transfer of policies of insurance, signed by the president, and attested by the secretary of the said company, subject to the rules and regulations of said company, and to such instructions as may from time to time be given by its officers.’ It further appeared that Wiltse was furnished by both companies with blank policies which he was authorized to countersign and issue in accordance with the terms of his commission. He also testified that the Agricultural Insurance Company had given him instructions not to insure flour or grist mills, and that this prohibition included the contents as well as the buildings.

Under Rule 38 (50 N. E. v.) of the common law rules of the Superior Court, the Agricultural Insurance Company admitted that the ‘law of the State of New York is that if and when a binding verbal contract of fire insurance is made, it embraces within it the provisions of the standard policy of fire insurance prescribed by the New York Legislature’; and the Equitable Fire & Marine Insurance Company admitted that ‘If by reason of any conversation which Mr. Wiltse may have had with Mr. Daggett on July 18, 1918, it could be properly found that the defendant then and there entered into a contract of insurance with the plaintiff, no doubt the New York standard form of fire insurance policy constituted a part of that contract.’ A copy of the form of said standard policy was in evidence, and the record states that ‘at the time of this loss [it] was the only form of fire insurance policy which could be lawfully issued’ in that State. Hicks v. British American Assurance Co., 162 N. Y. 284, 56 N. E. 743,48 L. R. A. 424.

The law as to oral contracts relating to insurance against fire is well settled and need not again be fully stated. Oral contracts of insurance, and to insure temporarily, against fire are valid apart from some statutory prohibition. McQuaid v. AEtna Ins. Co., 226 Mass. 281, and cases collected on page 283, 115 N. E. 428. The alleged contracts were made in New York. Since there is no evidence as to the law of that State, the presumption is that it is the same as our own. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104, 72 N. E. 345;Cavanaugh v. D. W. Ranlet Co., 229 Mass. 366, 118 N. E. 650. An agent empowered to countersign and issue policies may, as incidental to his...