Royal Insurance Co. v. Walker Lumber Co.

• Decision Date: 14 May 1915
• Docket Number: 795
• Citation: 23 Wyo. 264,148 P. 340
• Parties: ROYAL INSURANCE CO. v. WALKER LUMBER CO
• Court: Wyoming Supreme Court

148 P. 340

23 Wyo. 264

ROYAL INSURANCE CO. v. WALKER LUMBER CO

No. 795

Supreme Court of Wyoming

May 14, 1915

Rehearing Granted July 27th, 1915.

ERROR to the District Court, Laramie County; HON. WILLIAM C MENTZER, Judge.

Action to recover on a contract of fire insurance. From a judgment in favor of the Lumber Company and against the Insurance Company for the amount claimed, it brings error.

Affirmed.

C. W Burdick and Fred Herrington, for plaintiff in error.

The alleged contract of insurance is based upon correspondence that passed between the parties. No policy was ever issued. The loss occurred on the 19th of February, 1911, but prior thereto the owner had conveyed the property to another. If a policy had been issued, this conveyance would have forfeited the insurance. The Lumber Company being a lien holder can recover only upon the right of the owner. (Keith v. Royal Ins. Co., 94 N.W. 295.) The terms of the contemplated policy govern and where the terms of the policy are voided by an act of the owner, it is void as to the material man. (Atlas Reduction Co. v. New Zealand Ins. Co., 138 F. 497; Bates v. Equitable Ins. Co., 10 Wall. 33, 19 L.Ed. 882; Ermentrout v. American Fire Ins. Co., 60 Minn. 418, 62 N.W. 543; Brunswick Savings Institution v. Commercial Union Ins. Co., 68 Me. 313, 28 Am. Rep. 56; Wunderlich v. Palatine Fire Ins. Co., 104 Wis. 395, 402, 80 N.W. 471; Scandia Ins. Co. v. Johnson, 22 Colo. 476, 45 P. 431; Delaware Ins. Co. v. Greer, 57 C. C. A. 188, 190, 191, 193, 120 F. 916, 919, 921, 61 L. R. A. 137; Syndicate Ins. Co. v. Bohn, 27 L. R. A. 619; Brecht v. Law, Union & Crown Ins. Co., 160 F. 399-402.) The correspondence did not contain all of the essentials of a completed contract and was insufficient to bind the Insurance Company. (Benner v. Fire Ins. Assn. of Phil., 78 A. 44; Mich. Pipe Co. v. Mich. Fire & Marine Ins. Co., 20 L. R. A. 277 and 289.) Suit was not instituted within twelve months after loss, as required by the terms of the contemplated policy of insurance. There is a distinction between a contract to insure and a contract of insurance. Plaintiff must allege a breach of the particular contract which he relies upon. (Crow v. Hildreth, 39 Cal. 618.) The amendment to the petition incorporated a new cause of action, which was not brought within the twelve month period. (Union Pacific R. Co. v. Wyler, 158 U.S. 285, 39 L. C. Ed. 983; Buntin v. C. R. I. & R., 41 F. 748; Whalen v. Gordon, 95 F. 305; Nugent v. Adsit, 93 Mich. 462, 53 N.W. 620; Schwartz v. Stock, 65 P. 357.) Binders or temporary contracts for insurance are governed by the terms of the regular policy issued by the insurer. (Ogle Lake Shingle Co. v. National Lumber Ins. Co., 122 P. 990.)

Clark & Clark, for defendant in error.

The record shows a valid contract for insurance to have been made between the Insurance Company and the material man. The correspondence put in evidence makes this fact very clear. The local agent was, of course, seeking to convert the binder into a permanent policy in favor of the owner of the building. It was a builder's risk in which the Lumber Company, who had furnished the material, was chiefly interested. The terms of the contract are clear and it contains all of the essentials of a binding obligation. The Insurance Company having made no contract with the owner, Billingsley, its obligation being to carry a risk for a material man pending construction, the principle urged by plaintiff in error, that a transfer of the property by the owner voided the contract, in view of certain stipulations carried in the printed form of policy used by the company, cannot apply in the present case and authorities cited in support thereof are not in point. This is especially true in view of the fact, that what is known as the New York long form mortgagee's clause was followed, which protects a mortgagee against the defaults of the owner. (Oakland Ins. Co. v. Bank of Commerce, 47 Neb. 717, 58 A. S. R. 663, 66 N.W. 646.) This Nebraska decision has been approved in the following cases: Queens Ins. Co. v. Dearborn Assoc., 175 Ill. 117, 51 N.E. 717; East v. New Orleans Ins. Co., 76 Miss. 697, 26 So. 691; Boyd v. Thuringia Ins. Co., 55 L. R. A. 165; Christemsen v. Fidelity Ins. Co., 117 Ia. 77, 90 N.W. 495, 94 A. S. R. 286; Welch v. Assurance Co., 148 Cal. 223, 82 P. 964; Edge v. Insurance Co., 20 S.D. 190, 105 N.W. 281. The only cases to the contrary are: Franklin Ins. Co. v. Wolff, 23 Ind.App. 555, 54 N.E. 772; Delaware Ins. Co. v. Greer, 120 F. 916; Vancouver Natl. Bank v. Law, Union & Crown Ins. Co., 153 F. 440, and Brecht v. Law, Union & Crown Ins. Co., 160 F. 399. It was clearly stipulated that the loss, if any, should be payable to the Lumber Company, as its interest might appear at the time of loss. There was no reference whatever to the conditions of the policy. The amendment to the petition was not affected by the twelve month limitation clause: The contract here contains no limitation as to the time of commencing suit. (Queen Ins. Co. v. Dearborn Assoc., 175 Ill. 177, 51 N.E. 717.) It is a contract of insurance and was intended to insure, and the amendment was simply an enlarged statement of the nature of the obligation. The original petition was adequate and the amendment did not add a new cause of action. (Summers v. Mutual Life Ins. Co., 12 Wyo. 369.) The defendant filed an answer and proceeded to trial. There was no complaint that defendant was taken by surprise. No bill of exceptions appears in the record. The transcript of evidence is not authenticated. None of the exhibits are authenticated, except by the court reporter. (France v. Bank, 3 Wyo. 188.) The form of policy offered in evidence is among the uncertified exhibits and cannot be considered in construing the nature of the contract between the parties.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

This is an action brought by the defendant in error against the plaintiff in error to recover $ 1,477.50 and interest claimed to be due on a contract of insurance. The case was tried to the court without a jury and judgment rendered in favor of the Lumber Company and against the Insurance Company for the amount claimed, and it brings error.

The Lumber Company, plaintiff below, alleged, in substance, that about December 19, 1910, the Insurance Company, in consideration of the regular premium of $ 22.50, undertook and agreed with plaintiff to insure and did insure plaintiff for the period of one year in the amount of $ 1,500 against damage due to loss by fire of a certain frame building in Lost Springs, Wyoming, known as the building of B. F. Billingsley, which was at the time of making the contract in course of construction, and the material therefor was being furnished and supplied by plaintiff; that at said time the plaintiff had furnished for said building materials of a value of more than $ 1,500.00, no part of which had been paid, and that it continued to furnish material therefor until it was destroyed by fire about February 19, 1911, at which time the amount due plaintiff for material exceeded $ 1,500.00, and that the time for filing a lien therefor had not arrived, and had not expired. Alleged proof of loss and compliance with the contract by plaintiff, etc. The defendant in its answer denied the existence of any contract to insure, or of insurance, and pleaded other matters in defense not necessary to set out here in view of the disposition which must be made of the case on the record presented.

Counsel for defendant in error contend in their brief and also in oral argument that the record presents no questions for determination by this court for the reasons that a consideration of all of the exhibits introduced in evidence on the trial is necessary to a determination of the matters complained of, and that there is no bill of exceptions properly certified to this court containing said exhibits.

There is on file a volume or bundle of papers containing the pleadings, motions, etc. (but not containing the evidence or bill of exceptions), and certified by the clerk of the District Court to contain all of the original papers in the case. There is also filed another volume or bundle of papers entitled, "Transcript of Evidence" (not certified by the clerk as papers in the case, or accompanied by an index as required by rule 10) containing the oral testimony of witnesses, at the end of which appears the statement "The foregoing is all of the testimony offered by either party, whereupon the court gave judgment for the plaintiff as appears...