St. Paul Fire & Marine Ins. Co. v. Kelley

• Decision Date: 02 April 1902
• Citation: 2 Neb. [Unof.] 720,89 N.W. 997
• Court: Nebraska Supreme Court
• Parties: ST. PAUL FIRE & MARINE INS. CO. v. KELLEY ET AL.

2 Neb. [Unof.] 720

89 N.W. 997

ST. PAUL FIRE & MARINE INS. CO.

v.KELLEY ET AL.

Supreme Court of Nebraska.

April 2, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Furnas county; Norris, Judge.

“Not to be officially reported.”

Action by William H. and Charles A. Kelley against the St. Paul Fire & Marine Insurance Company. On appeal from a justice, plaintiffs obtained judgment, and defendant brings error. Reversed.Lambertson & Hall, for plaintiff in error.

W. S. Morlan, for defendants in error.

DAY, C.

This action was commenced by William H. and Charles A. Kelley before a justice of the peace against the St. Paul Fire & Marine Insurance Company, to recover for a loss by hail to growing grain owned by the plaintiffs. An appeal was taken to the district court of Furnas county, where, upon trial, the plaintiffs recovered a judgment for $96.10, to review which the defendant has brought the case on error to this court.

The facts necessary to an understanding of the questions presented by the record are substantially as follows: On June 22, 1897, the plaintiffs made application to the defendant, through its soliciting agent, one Sherwood, for insurance in the sum of $300 upon growing crops of wheat and rye owned by plaintiffs, against loss or damage by hail. At the time of making the application, the plaintiffs paid to Sherwood the sum of $15 as premium, it being the amount he demanded.The application was upon one of the company's regular blanks, and so much thereof as is material to the present inquiry is as follows: “I, C. A. Kelley, and W. H. Kelley, of Cambridge Post Office, in the county of Frontier, in the state of Nebraska, hereby make application to the St. Paul Fire & Marine Insurance Company for insurance upon growing grain against damage by hail only, for the season of 1897, to the amount of $300, from the day this application is accepted and approved at the home office of the company at St. Paul at 12 o'clock noon, until September 15, 1897, at noon.” And also a recital as follows: “That I know this application does not bind the company until received and approved at its general office in St. Paul, Minn.” This application, together with a money order for $11.90, being the premium of $15, less the agent's commission and costs of the money order, was forwarded to the defendant by Sherwood on June 23, 1897, and was received by the company on the 25th or 26th of June. In the due course of business, on June 28th, the application was examined by the officers of the defendant company, and on that day it wrote a letter to the agent, Sherwood, and inclosed the application, with the statement that the regular premium for such risks in Frontier county was 6 per cent., instead of 5, and requested the agent to collect $3 additional, the balance of the premium, and to make amendments in the application. This letter was received by Sherwood on June 30th, and on the same day he remitted to the company the balance of the premium. Whether the plaintiff paid this balance to the agent does not appear. In the letter transmitting the balance the agent says, “I was in error as to the rate, thinking it was $5.00.” The loss occurred on the afternoon of June 28, 1897. On July 3, the application was approved by the company, and a policy issued in favor of the plaintiffs, dated July 3, 1897, and expiring September 15, 1897. It appears that defendant...