Southern Idaho Conference Ass'n of Seventh Day Adventists v. Hartford Fire Ins. Co.

• Decision Date: 21 January 1915
• Citation: 145 P. 502,26 Idaho 712
• Parties: THE SOUTHERN IDAHO CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS, a Corporation, Appellant, v. THE HARTFORD FIRE INSURANCE CO., a Corporation, Respondent
• Court: Idaho Supreme Court

145 P. 502

26 Idaho 712

THE SOUTHERN IDAHO CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS, a Corporation, Appellant, v. THE HARTFORD FIRE INSURANCE CO., a Corporation, Respondent

Supreme Court of Idaho

January 21, 1915

POLICY OF INSURANCE-NONSUIT-EVIDENCE-SUFFICIENCY OF-REJECTION OF EVIDENCE-PROOF OF LOSS-WAIVER OF.

1. Upon motion for nonsuit, as provided by sec. 4354, Rev. Codes, the defendant admits the existence of every fact which the evidence tends to prove or which could be gathered from any reasonable view of the evidence, and plaintiff is entitled to the benefit of all inferences in his favor which the jury would be justified in drawing from the testimony.

2. The refusal of the court to admit certain evidence on the trial held reversible error.

3. Where a waiver of proof of loss is an issue in a case, all evidence tending to establish such waiver ought to be admitted.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.

Action to recover on a policy of insurance. Judgment of nonsuit for the defendant. Reversed.

Judgment reversed and a new trial granted, and cause remanded. Costs awarded in favor of appellant.

Richard H. Johnson, for Appellant.

The rule of law which governs on a motion for nonsuit is clearly laid down by this court in Later v. Haywood, 12 Idaho 78, 85 P. 494, and Bank of Commerce v Baldwin, 12 Idaho 202, 85 P. 497, to the effect that such a motion admits the existence of every fact in favor of the plaintiff which the evidence tends to prove or which could be gathered from any reasonable view of the evidence. (See, also, Shank v. Great Shoshone & Twin Falls Water Power Co., 205 F. 836, 124 C. C. A. 35; Culver v Kehl, 21 Idaho 596, 123 P. 301; Allen v. Phoenix Assur. Co., 12 Idaho 653, 88 P. 245, 10 Ann. Cas. 328, 8 L. R. A., N. S., 903; Pratt v. Dwelling-House Fire Ins. Co. 130 N.Y. 206, 29 N.E. 118.)

An agreement to renew insurance in force is presumed to have reference to the terms and conditions of the existing policy. (19 Cyc. 630, and cases cited in note 33.)

Where plaintiff's last insurance was had with the defendant insurance company through the same agent, the word "renew" in an oral contract with such agent to renew the insurance sufficiently designates the company, as well as the property to be insured, and the terms of the policy. (Abel v. Phoenix Ins. Co., 62 N.Y.S. 218, 219, 47 A.D. 81.)

In the following cases there was less evidence than in the case at bar to show a contract of insurance, and in all of them the court held that the question was one for the jury to determine: Smith v. Provident Sav. Life Assur. Soc., 65 F. 765; 13 C. C. A. 284; Dove v. Royal Ins. Co., 98 Mich. 122, 57 N.W. 30; Bowman v. Agricultural Ins. Co., 59 N.Y. 521; Church v. La Fayette Fire Ins. Co., 66 N.Y. 222; Welsh v. Continental Ins. Co., 47 Hun (N. Y.), 598; Hardwick v. State Ins. Co., 23 Ore. 290, 21 Am. St. 879, 31 P. 656; Long v. North British & M. F. Ins. Co., 137 Pa. 335, 21 Am. St. 879, 20 A. 1014; Latimore v. Dwelling-House Ins. Co., 153 Pa. 324, 25 A. 757; Nute v. Hartford Fire Ins. Co., 109 Mo.App. 585, 83 S.W. 83; Gerib v. International Ins. Co., 1 Dill. 443, F. Cas. No. 5298; Forehand v. Niagara Ins. Co., 58 Ill.App. 161; Phoenix Ins. Co. v. Coffman, 10 Tex. Civ. App. 631, 32 S.W. 810.

In Marysville Merc. Co. v. Home Fire Ins. Co., 21 Idaho 383, 121 P. 1026, the facts are in many respects like the case at bar, and what was said with reference to the agent Kruger in that case applies with equal force to Gardner in this case.

Martin & Martin, for Respondent.

The insurance policy sued upon was properly excluded from evidence, for the reason that appellant failed to show that there was a contract of insurance at the time of the fire. (Joyce on Insurance, secs. 41, 1459; Kerr on Insurance, sec. 49, p. 107; 2 Clement on Fire Insurance, p. 522; Wood on Insurance, 2d ed., secs. 5, 6, 15.)

"An oral agreement between plaintiff and defendant's agent in regard to renewing a policy of fire insurance in which the amount of the policy to be taken is not fixed does not constitute a binding contract." (Sater v. Henry County Farmers' Mut. Fire Ins. Co., 92 Iowa 579, 61 N.W. 209; Michigan Pipe Co. v. Michigan Fire & Marine Ins. Co., 92 Mich. 482, 52 N.W. 1070, 20 L. R. A. 277.)

A parol contract of renewal cannot be established by mere negotiation. The minds of the parties must have met upon terms well agreed upon without anything being left for future determination. (2 Clement on Fire Ins., p. 522; Zigler v. Phoenix Ins. Co., 82 Iowa 569, 48 N.W. 987; O'Reilley v. Corporation of London Ins. Co., 101, N.Y. 575, 5 N.E. 568; Healey v. Imperial Ins. Co., 5 Nev. 268.)

Where at the time of the fire the policy has not been delivered, although written, the contract is prima facie incomplete, and the burden is upon the insured to show there was a valid, binding agreement of insurance prior to the fire. (Ogle Lake Shingle Co. v. National Lumber Ins. Co., 68 Wash. 185, 122 P. 990; Stephens v. Capital Ins. Co., 87 Iowa 283, 54 N.W. 140; Davis Lumber Co. v. Scottish Union & Nat. Ins. Co., 94 Wis. 472, 69 N.W. 156; Ferguson v. Northern Ins. Co., 26 S.D. 346, 128 N.W. 125; New York Lumber etc. Co., v. People's Fire Ins. Co., 96 Mich. 20, 55 N.W. 434; Hartford Fire Ins. Co. v. Whitman, 75 Ohio St. 312, 79 N.E. 459, 9 Ann. Cas. 218; Stebbins v. Lancashire, 60 N.H. 65.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This case was decided by this court on May 26, 1914, and a petition for rehearing was thereafter granted and a rehearing had at the January, 1915, term of court.

The action was brought by the plaintiff, the Southern Idaho Conference of Seventh Day Adventists, a corporation, to recover $ 3,500 on an insurance policy issued by the defendant, the Hartford Fire Insurance Company, a corporation, covering a school building situated near the village of Eagle in Ada county, which building was destroyed by fire on the night of November 21, 1911.

The complaint alleges that said policy was executed and delivered on November 20, 1911, and the payment of premium of $ 122.50 was made. The answer denies the execution and delivery of the policy, but on the trial counsel for defendant admitted that the policy was signed by the agent, but denied that it was delivered to the plaintiff. The complaint alleges, and it is admitted by the answer, that at all times mentioned in the complaint, Frank M. Gardner was the duly appointed, qualified and acting agent of the defendant Insurance Company, residing at the village of Eagle, and was authorized to solicit and receive applications for fire insurance and that he was duly licensed as such agent by the insurance commissioner of the state of Idaho, and that he was duly authorized by defendant to countersign and deliver for said defendant contracts or policies for insurance against loss or damage by fire, and to receive on behalf of said defendant payment of premiums therefor.

The case was tried by the court with a jury and before plaintiff had completed the...