Royal Insurance Company v. Walker Lumber Company

• Decision Date: 20 March 1916
• Docket Number: 795
• Citation: 24 Wyo. 59,155 P. 1101
• Parties: ROYAL INSURANCE COMPANY v. WALKER LUMBER COMPANY
• Court: Wyoming Supreme Court

155 P. 1101

24 Wyo. 59

ROYAL INSURANCE COMPANY v. WALKER LUMBER COMPANY

No. 795

Supreme Court of Wyoming

March 20, 1916

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

Action by Walker Lumber Co. to recover from Royal Insurance Company on a contract of fire insurance. On a former hearing reported at 23 Wyo. 264, 148 P. 340, the judgment was affirmed on the ground that the bill of exceptions failed to show that it contained all the evidence necessary to a determination of the errors assigned. Plaintiff in error petitioned for a rehearing and made application to withdraw the bill for amendment. The bill having by leave been withdrawn, amended and returned, a rehearing was granted and the cause was considered on the merits. An abstract of briefs filed by counsel was published with the former report. The facts are set forth in the following opinion.

Affirmed.

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

John D Clark, for defendant in error.

POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., being ill, did not participate in the decision.

OPINION

POTTER, CHIEF JUSTICE.

This action was brought upon an alleged contract of insurance to recover for the loss of a building by fire. Upon a trial without a jury the district court found generally for the plaintiff and rendered judgment in its favor for the amount claimed with interest. The case is here on error.

The judgment was affirmed on a former hearing on the ground that the bill of exceptions failed to show that it contained all the evidence necessary to a determination of the errors assigned. (148 P. 340.) On the petition of plaintiff in error a rehearing was granted, and upon its motion the bill was ordered returned to the District Court to permit an application to be made and heard in that court for an amendment of the bill and a rearrangement of the pages thereof, which it was claimed had been disarranged when binding the same together with permanent covers after the bill was allowed and signed. The bill having been amended and returned to this court, now showing that it contains all the evidence including the exhibits, the cause has again been submitted.

1. The first question to be considered is whether there was a contract of insurance, the defendant, plaintiff in error here, contending that there was not. In the petition it is alleged in substance as to the contract, that the defendant, for a stated consideration, on or about December 19, 1910, undertook and agreed to insure and did insure the plaintiff for the period of one year in the amount of $ 1,500 against damage resulting from loss by fire of a frame building in Lost Springs, Converse County, Wyoming, known as the building of B. F. Billingsley, which was then in course of construction, and for which the plaintiff was supplying the material, and had then furnished material of a value exceeding $ 1,500, for which it had not been paid; that the plaintiff thereafter continued to furnish material for said building until its destruction by fire, and at the time it was so destroyed the amount due plaintiff for said material largely exceeded the sum of $ 1,500. It is also alleged and the fact was not disputed on the trial that the said building was totally destroyed by fire, before completion, on February 19, 1911. Nor was the fact disputed that plaintiff had been damaged thereby in the amount remaining due and unpaid at the time of the trial for the material furnished as aforesaid, for which, with interest, the judgment was rendered.

On the trial it appeared that a policy of insurance had not been issued for said building or plaintiff's interest therein, but to establish defendant's liability the plaintiff relied upon certain correspondence as showing that the building had been insured by the defendant for $ 1,500, at plaintiff's request and to cover its said interest in the building, by or under what is known in the insurance business as a "binder". Respecting that matter the undisputed facts are as follows:

The plaintiff, O. L. Walker Lumber Company, was engaged in the general lumber and hardware business at Glenrock and Lost Springs, in Converse County, in this state. Otis L. Walker was the President, Treasurer and Manager of said company, and also agent for the defendant, the Royal Insurance Company, but without authority to write policies of insurance; his authority being limited to soliciting insurance and forwarding the applications to the company, or some one authorized to accept them and write the policies, and, as we understand, the policies when written were sent to him to be delivered, though that fact is not here material. On November 8, 1910, said Walker wrote to the Western Department Managers of the company at Chicago inquiring if they would insure two buildings at Lost Springs in course of construction for the material being used, the insurance to remain in force ninety days, for $ 2,000 on each building, and also stating that he wanted to insure for $ 500 the dwelling and furniture of R. C. Willy at Lost Springs for one year, the same to be in force as soon as possible. That letter was referred by said managers to R. H. Douglass, the state agent of the defendant company at Denver, Colorado, who wrote to Walker from Denver on November 28, 1910, as follows:

"Your favor of the 8th instant addressed to the Managers has been referred to me for attention. I would be pleased to have you forward application for risks you mention in your letter. We have bound $ 500.00 on dwelling and household goods for R. C. Willy at Lost Springs which is subject to distribution of amounts, and I would be pleased to receive application for same showing how you wish the amounts distributed."

By letter dated at Chicago, November 9, 1910, the Managers aforesaid had written to Walker as follows:

"It is our pleasure to advise that Mr. Robt. H. Douglass, State Agent, takes immediate charge of the Mountain field for the Royal. Several weeks ago we deemed it advisable to request you to send applications to us here instead of Denver, this pending an appointment of State Agent. * * * * We are today sending you, under another cover, envelopes addressed to Mr. Douglass at 602 First National Bank Building, Denver, Colorado. Kindly send all applications to him."

On December 16, 1910, Walker wrote to Douglass, using a letterhead of the O. L. Walker Lumber Company, as follows: "I wish you would kindly bind our stock of lumber at Lost Springs as follows 1000.00 on hardware lime plaster cement and nails and storebuildings 1,000.00 on lumber posts, lath, shingles and millwork, including mouldings, sash and doors. We are now carrying 10,000.00 on this, but our stock is increasing at such a rate that we feel the necessity of further insuring. * * * * I wish you would also bind the building of Mr. B. F. Billingsley being constructed at Lost Springs for $ 1500.00 as we are furnishing the material. We can probably make this permanent, but we want to be covered in the meantime." Mr. Douglass replied to that letter by one dated at Denver, December 19, 1910, as follows:

"I beg to acknowledge your favor of the 16th instant requesting a policy on your hardware, lime, plaster, lumber, etc. , and am pleased to enclose herewith policy 306-F covering $ 2000.00 under retail lumber form. * * * * Regarding your request to bind the building of Mr. B. F. Billingsley, which is in course of construction at Lost Springs, Wyo., for $ 1500.00, beg to say that this has been done; but wish to say that it is necessary for us to have a definite location on this risk if we are to hold the binder. I would therefore ask that you mail me one of our regular application blanks that the policy may be issued. In order that there may be no misunderstanding, would say that when issuing a binder on a risk it is always with the understanding that the policy be issued within a reasonable time after. In risks of this nature it is our custom to issue the policy for the full term of one year, and if the policy cannot be made permanent when the building is complete the policy is cancelled short rate. I do not believe you have understood this clearly in the past and trust you will be able to make this risk a permanent one, in which event I would be pleased to have you advise me the nature of the risk whether it is a dwelling or mercantile building; it is always necessary that I have this information. Regarding the binder we are holding of Mr. Willy's would say that I would appreciate your giving this matter your prompt attention, on your return, as we have been holding this binder for some time, and it is very necessary that the policy be issued and the matter closed. Thanking you for your usual prompt attention to these matters and awaiting the completed application on the building in course of construction and on the Willy risk, I am with kind regards, Yours very truly, R. H. Douglass, State Agent."

The remaining correspondence between said parties with reference to this matter was as follows:

Glenrock, Wyoming, Jan. 11, 1911. Mr. Robt. H. Douglass, Agt. Denver, Colo. Dear Sir: I am enclosing you herewith check for $ 18.70 as per your statement of the 16th. Also am handing you blank of Mr. Willey which I trust will enable you to hand me the policy soon. Will get the proper information as soon as possible. (regarding Billingsley.) Yours very truly, O. L. Walker.

Denver Colo. January 14th, 1911. Mr. O. L. Walker, Agent, Glenrock, Wyoming. Dear Sir: --I beg to acknowledge receipt of your favor of the 11th instant enclosing your check for $ 18.70 in payment of the premium under Royal Policy 306-F for which I thank you. I am enclosing herewith policy 314-F C. E. Willey, which I trust you will find satisfactory. I note...