Phoenix Insurance Company v. Hale

• Court: Arkansas Supreme Court
• Writing for the Court: HUGHES, J.
• Citation: Phoenix Insurance Company v. Hale, 55 S.W. 486, 67 Ark. 433 (Ark. 1900)
• Decision Date: 10 February 1900
• Parties: PHOENIX INSURANCE COMPANY v. HALE

55 S.W. 486

67 Ark. 433

PHOENIX INSURANCE COMPANY v. HALE

Supreme Court of Arkansas

February 10, 1900

Appeal from Mississippi Circuit Court, FELIX G. TAYLOR, Judge.

STATEMENT BY THE COURT.

The appellee, William P. Hale, plaintiff below, brought suit at the fall term, 1897, of the Mississippi circuit court against the Phoenix Insurance Company, of Hartford, Conn alleging, in substance, that on the 12th of November, 1891 the insurance company issued an delivered to him a policy of insurance No. 6906, for the sum of $ 600, in which it covenanted and agreed, in consideration, of the payment of the premium of $ 19.50 to insure his barn, located upon the Witherspoon Place, against all loss or damage by fire for the period of three years from the date of said policy. (Neither the original policy nor copy thereof was exhibited with complaint, but plaintiff alleged that it had been lost or mislaid). Plaintiff further alleged that shortly before the expiration of said policy the local surveyor and agent of the Insurance Company, Charles H. Gaylord, made to plaintiff a proposition for renewal of said policy for the further term of three years; that plaintiff accepted the proposition, and then and there paid said agent the sum of $ 19.50 as premium for renewal of policy No. 6906, insuring the same property for the same amount for the further period of three years from the expiration of the original policy; that at the time the said agent of the insurance company issued and delivered to plaintiff the following binding receipt, viz.:

BRANCH OF THE PHOENIX INSURANCE COMPANY, HARTFORD, CONN.

"BINDING RECEIPT.

"Premium $ 19.50.

Number 6906.

"This certifies that W. P. Hale of Osceola, Arkansas, has paid to the duly authorized surveyor of this company the sum of nineteen and 50-100 dollars, which entitled him to a renewal of policy No. 6906 (which expires November 12, 1894,) in the Phoenix Insurance Company, of Hartford, Conn., for the period of three years from the countersigning of this receipt, which is binding for a period not exceeding thirty days from the date of the countersigning by the duly authorized surveyor of this company at Osceola, Ark., and subject, in case of loss or damage by fire, to all the printed conditions of said policy, and to be invalid upon the issue of such renewal. This receipt is not assignable, and any erasure or change made hereon will render it unconditionally null and void, but the same shall not be binding until countersigned by the duly appointed surveyor of the company at Osceola, Ark.

"D W. C. SKILTON, Secretary.

"Countersigned at Osceola, Ark., this 27th day of October, 1894.

C. H. GAYLORD, Surveyor."

Plaintiff then alleges that he does not remember whether an additional policy was issued to him or not, as he can find none, but says that, having accepted defendant's proposition to renew, and having paid the premium for renewal, he considered this to be a contract and agreement of renewal of his original policy No. 6906. He also alleges that said transactions above set out had the force and effect of a contract of insurance, and of renewing and keeping alive his said original policy No. 6906, for the period of three years from the 12th day of November, 1894, and is as binding upon the insurance company as if a new policy had been issued and delivered to him. Plaintiff then alleges that on the 6th day of April, 1897, his said barn was totally consumed by fire, under circumstances not within the excepted causes mentioned in said policy, and became a total loss to plaintiff; that by reason of said loss the insurance company became indebted to him in the sum of $ 600; that he immediately notified the insurance company of the loss, and demanded payment, which they refused on the ground that he had no insurance with them at the time of his loss.

To which complaint the insurance company interposed a general demurrer, alleging that it did not state facts sufficient to constitute a cause of action, which demurrer was by the court overruled, and to which ruling of the court defendant at the time excepted.

Defendant then answered, denying its indebtedness to plaintiff in the sum of $ 600, or any other sum, but admitting that on the 12th day of November, 1891, plaintiff took out the policy of insurance No. 6906, which said policy ran for a period of three years, expiring on the 12th day of November, 1894; that since the 12th of November, 1894, plaintiff has carried no insurance with defendant company for any amount, nor has defendant, since said time, issued plaintiff a policy of insurance. Defendant admitted that plaintiff did make application to its local surveyor and agent, C. H. Gaylord, for renewal of his said policy upon his barn on the 27th of October, 1894, but denies that he paid to their local surveyor and local agent the sum of $ 19.50 as premium for renewal of said policy, or that he paid any sum to their said local agent as premium for renewal of said policy. Defendant admitted the execution and delivery of binding receipt described in the complaint to the plaintiff by their local surveyor, who at once forwarded the application of plaintiff to the office of the defendant company, which application was at once rejected, and the plaintiff notified that his said application was rejected, unless he would include in his application his dwelling on his farm, and then with a condition annexed that he must reside in the dwelling. Defendant further alleged that, at the time said application was made by plaintiff for a renewal, he then had a policy of insurance with some other fire insurance company upon his dwelling on said farm, and declined to include his dwelling in his application. Defendant further alleged that its local surveyor and agent, C. H. Gaylord, had no authority to pass upon applications for insurance to bind the insurance company, nor had he any authority to issue policies of insurance, but the right to accept applications for policies of insurance, and to issue the same, was reserved to the home office.

Verdict and judgment for plaintiff, and defendant appealed to this court.

Affirmed.

J. M. Moore and W. B. Smith, for appellant.

The "binding receipt" was not a contract of insurance, except for the time therein limited as a period for negotiations for a renewal. 61. Ia. 216; 61 Ind. 488. Evidence of the usages and customs of insurance companies with resepect to such receipts was competent to explain it. 53 Pa.St. 485; 16 Gray 359; 7 Wend. 270; 12 Cush. 429; Greenl. Ev. § 292. The renewal of the policy would have been a new and distinct contract. 54 Ill. 164. Appellee would have had to contract therefor with some one empowered to bind the company. He is chargeable with notice of the agent's power. 39 P. 587; 62 N.W. 798. That the surveyor had no authority to renew insurance, see 54 Ark. 78.

S. S. Semmes, for appellee.

A parol contract of insurance is good when the parties have come to a definite understanding upon all the elements of the contract. 13 Am. & Eng. Enc. Law (2 Ed.), 218; 63 Ark. 204; 19 N.Y. 305; 90 N.Y. 281; 19 How. 318; 21 Am. St. Rep. 883n; May, Ins., § 19; Ostrander, Ins. 10 n, 17, 18; 5 Laws. Rights, Rem & Pr. § 2040, 2044.

OPINION

HUGHES, J., (after stating the facts.)

There was evidence in the case tending to show, and from which the jury might have found, that the appellee, W. P. Hale, made application to Gaylord, the local surveyor and agent of the appellant, the Phoenix Insurance Company, for renewal of his policy of insurance No. 6906; that he paid $ 19.50 to Gaylord, as a premium therefor; that he received the binding receipt of the company therefor, which was countersigned by Gaylord, the surveyor of the company; that Gaylord forwarded the said application to his company, and that the appellee Hale, was not notified by said company that it declined to renew said policy, and that said premium of $ 19.50 paid by Hale to Gaylord was never returned to the appellee, Hale; that Hale believed his policy was renewed by the company, and that he never knew that the company claimed that it had...