Travelers' Fire Insurance Company v. Globe Soap Company

• Decision Date: 20 January 1908
• Citation: 107 S.W. 386,85 Ark. 169
• Parties: TRAVELERS' FIRE INSURANCE COMPANY v. GLOBE SOAP COMPANY
• Court: Arkansas Supreme Court

107 S.W. 386

85 Ark. 169

TRAVELERS' FIRE INSURANCE COMPANY v. GLOBE SOAP COMPANY

Supreme Court of Arkansas

January 20, 1908

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

Judgment Affirmed.

Young & Rowell, for appellant.

As between the appellant and appellee, there was no mutuality of contract, since the identity of persons had not been disclosed to anyone except to McRae, who, as appears by his own testimony, had no authority to bind the appellee, 13 Cyc 598; 16 Am. & Eng. Enc. of L. (2 Ed.), 849; Ostrander on Fire Ins. 17. Where the offer comes from the company to insure, it is necessary that the policy be delivered to the insured and accepted by him before there is a contract of insurance. 41 Conn. 97. If there is merely a contract to insure, as distinguished from a contract of insurance, the contract must be delivered in order to complete the contract of insurance. 57 A. 440. Likewise, if the policy is issued without any request by the insured. 13 S.E. 798. When the policy is issued without the knowledge of the insured, and where it was effected through brokers and middlemen, the policy must be delivered in order to complete the contract. 60 N.H. 65. If the policy is issued, not upon application of the insured but upon that of another for him, the policy must be delivered to the insured before the contract is binding. 20 Pa.Super. Ct. 238. See also 70 Ill.App. 615.

Austin & Danaher, for appellee.

If the insured employ another to procure insurance for him, such person is his agent, and not that of the insurer. 22 Cyc. 1444 and cases cited. Possession by the insured of a policy of insurance is prima facie evidence of the genuineness of the contract, and the burden is on the insurer to show its invalidity. 66 Ark. 612. Even when the broker solicits the insurance, he is ordinarily the agent of the insured, and not of the insurer. 16 Am. & Eng. Enc. of L. (2 Ed.), 971.

OPINION

BATTLE, J.

This action was commenced by the Globe Soap Company against Travelers' Fire Insurance Company on a policy of insurance against fire executed by the defendant to plaintiff and dated December 10, 1904, and in the sum of $ 1,000; the claim under the policy being for $ 410.26. The defendant denies liability under the policy, for the reason, as it claims, there was no contract of insurance at the time of the fire, which was on the 13th day of December, 1904, as the policy had not been delivered. The issues in the case were submitted to the court, sitting as a jury. He found for the plaintiff in the sum of $ 459.49, the amount sued for, and interest, and rendered judgment accordingly, and the defendant appealed.

The appellee instructed its brokers, Drexel, Brown & Company, to procure insurance for it, who ordered it from E. T. Marshall & Company, brokers, and they ordered it from A. L. McRae, an insurance broker, and he made application to appellant for it, procured the policy in controversy, and sent it to Drexel, Brown & Company for appellee. The policy was in the United States mail en route from Chicago to Cincinnati in an envelope...