Ulledalen v. United States Fire Ins. Co.
| Decision Date | 31 July 1946 |
| Docket Number | 6946. |
| Court | North Dakota Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. Oral contracts to insure against loss or damage by fire covering the time elapsing between the placing of the insurance and the issuance of a policy are valid.
2. Under N.D.R.C. 1943, Sec. 26-0702 a legal resident of North Dakota who is licensed by the Commissioner of Insurance as the agent of a foreign fire insurance company, and who solicits insurance on behalf of such company, takes applications for policies of insurance, receives policies prepared pursuant to such applications, countersigns such policies, delivers them, and collects premiums thereon is the agent of such company to all intents and purposes (unless it is shown that he received no compensation for such services), and he has authority as such agent to enter into an oral agreement insuring one who has made application for insurance against loss of or damage to the property by fire during the time elapsing between the placing of the insurance and the issuing of the policy.
3. The powers of such agent cannot be narrowed by limitations not communicated to the person with whom he deals.
4. A contract of fire insurance consists generally of two prerequisites, an offer or application and its acceptance. The acceptance of the offer or application completes the contract and binds the insurer although the policy has not yet been issued or delivered.
5. In the absence of a statute or an agreement to the contrary the validity and operative effect of a fire insurance contract or policy is not dependent upon the prepayment of the premium.
6. A contract of insurance may be consummated without the actual or manual delivery of the policy, unless delivery is required by agreement of the parties.
7. Where a fire insurance policy provides that it shall not be valid unless countersigned by the local agent of the insurer the absence of such countersignature does not render the policy ineffective where the intention to issue the policy and the intention that it shall be effective and cover the risk is otherwise sufficiently plain.
8. Where a fire insurance policy provides that it shall be countersigned by the local agent of the insurer, the countersigning is a matter for the insurer, and the failure to do so cannot be made the basis for denial of liability on the part of the insurer.
9. In this case the defendant contends that the evidence clearly shows that the plaintiff set the fire which destroyed the insured property; and that the trial court should have ordered judgment in favor of the defendant notwithstanding the verdict, or in any event should have ordered a new trial. For reasons stated in the opinion, it is held, that the evidence did not establish as a matter of law that the plaintiff burned the property; nor can it be said that the finding of the jury that the plaintiff did not burn the property is against the evidence.
10. The rule against splitting causes of action exists mainly for the protection of the defendant, and the rule against partial assignments was established for the benefit of the debtor. Where in an action brought by the original owner of a claim the defendant interposes objection by answer that a plaintiff has made partial assignments of the claim, and that as a consequence there is a defect of parties plaintiff because the holders of such partial assignments have not been made parties to the action, the objection is fully met where such assignees cancel the partial assignments and release the debtor from all liability and claim under such assignments and thus reinvest the plaintiff with all interest in and ownership of the claim so that the entire claim may be litigated in one action and the debtor is afforded opportunity to pay the debt (if one is established) in a single transaction.
Nilles, Oehlert & Nilles, of Fargo, for defendant and appellant.
Walter O. Burk, of Williston, for plaintiff and respondent.
In this action the plaintiff seeks to recover for the loss of certain personal property which he claims that the defendant had insured against loss or damage by fire in the amount of $1,000. In his complaint the plaintiff alleges that on October 28, 1942, in consideration of the payment by the plaintiff to the defendant of a premium to be paid at the time the rate was determined by the defendant, the defendant made its policy of insurance in writing, thereby insuring the plaintiff against loss or damage by fire in the amount of $1,000 on household and personal effects contained in a certain frame building in the City of Williston; that on the 9th day of November, 1942, while said policy was in full force and effect, the household and personal effects so insured were destroyed by fire; that the household and personal effects so destroyed were of the value of $1,400; that plaintiff has fulfilled all the conditions of the insurance policy on his part, and that more than 60 days before the commencement of the action and immediately after said fire the plaintiff gave to the defendant due notice and proof of the fire and loss; that no part of the loss has been paid. Judgment is demanded for the full amount of the policy.
The answer denies generally the allegations of the complaint, except such as are specifically admitted. It denies that the defendant issued or delivered a policy of insurance to the plaintiff. It admits that the fire occurred but denies that the plaintiff sustained any loss, and alleges on information and belief that any loss or damage sustained by him was caused by and due to his own willful acts and procurement. It further alleges that subsequent to the fire the plaintiff made partial assignments to certain named persons of certain amounts claimed to be due to him under the policy; that such assignments are still outstanding, and that as a result the plaintiff is not the only real party in interest, and that persons holding such partial assignments should have been made parties to the action.
It is further alleged that the plaintiff never paid the premium on the policy which would have been due and payable in case such policy were issued and delivered as claimed by the plaintiff.
The case was tried to a jury upon the issues thus framed. At the close of the evidence and after both sides had rested, defendant's counsel moved the court to dismiss the action on the grounds that the plaintiff is not the only real party in interest; that there is defect in the parties plaintiff, and that there are necessary parties to the action who have not been joined as parties plaintiff; that the undisputed evidence shows that prior to the commencement of the action the plaintiff made partial assignments of certain portions of his claim under the policy to certain named parties and that the policy was never delivered and effective as a contract of insurance between the plaintiff and the defendant.
The motion to dismiss was denied. Thereupon defendant's counsel moved for a directed verdict in favor of the defendant for a dismissal of the action upon the grounds stated in the motion to dismiss, and 'upon the further ground that the evidence is conclusive in showing that O. O. Ulledalen willfully burned the residence and personal property which he claims was insured'; and that the plaintiff has failed to prove facts sufficient to constitute a cause of action 'in solely his behalf' as claimed in the complaint. The motion for a directed verdict was denied and the case submitted to the jury. The jury returned a verdict in favor of the plaintiff for $630 with interest from November 9, 1942. Thereafter the defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. The motion for judgment notwithstanding the verdict was predicated on the grounds stated in the motion for a directed verdict.
The alternative motion for a new trial specified the following grounds: (1) Insufficiency of the evidence to justify the verdict and that it is against the law; (2) Errors in law occurring at the trial and excepted to by the defendant; (3) That the verdict is against the great weight of evidence and that the court in the exercise of sound discretion should grant a new trial; and (4) That the defendant is entitled to a new trial upon all the grounds specified in the motion for a directed verdict.
The alternative motion for a new trial stated the following specifications of insufficiency of the evidence: (1) That the verdict is against the evidence and the law; (2) That the evidence does not establish a cause of action against the defendant; (3) That the evidence clearly shows that any loss or damage sustained by the plaintiff, O. O Ulledalen, by reason of the fire described in plaintiff's complaint, was caused by and due to the willful acts and procurement of the plaintiff; (4) That the evidence is undisputed that subsequent to the occurrence of the fire and prior to the commencement of the action the plaintiff made partial assignments to certain persons of portions of the amount claimed by him to be due under the policy of insurance, and that as a result the plaintiff is not the only real party in interest, and that such partial assignees should have been made parties to the action; (5) That the undisputed evidence shows that the policy of insurance was never delivered by the defendant to the plaintiff and that such policy never became effective as a contract of insurance between the plaintiff and the defendant; (6) That the verdict is excessive and 'that excessive damages were given by the jury under the influence of passion and prejudice'; and (7) That upon the entire record the court in the exercise...
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