Wales v. N.Y. Bowery Fire Ins. Co.

• Decision Date: 14 June 1887
• Citation: 33 N.W. 322,37 Minn. 106
• Parties: WALES v NEW YORK BOWERY FIRE INS. CO.
• Court: Minnesota Supreme Court

37 Minn. 106

33 N.W. 322

WALESvNEW YORK BOWERY FIRE INS. CO.

Supreme Court of Minnesota.

June 14, 1887.

(Syllabus by the Court.)

Where the property has been destroyed by fire before the application for insurance was made, and the terms of the contract agreed on, and the insured knew the fact, but did not communicate it to the insurer, who accepted the risk and issued the policy in ignorance of it, the policy is void, and will not cover the loss, although antedated as of a date prior to the destruction of the property.

Held, under the facts of this case, that May 18th, three days after the loss occurred, must be deemed the date when the application was made, and the terms of the policy agreed on.

Appeal from district court, Hennepin county.

Action on insurance policy.

Lusk & Bunn, for Wales, respondent.

Torrance & Fletcher, for New York Bowery Fire Ins. Co., appellant.

MITCHELL, J.

This action was brought upon a policy of insurance to recover the value of wood destroyed by fire between the hours of 10 A.M. and 1 P. M. of May 15, 1885. The policy bore date May 13, 1885, and purported to insure plaintiff's wood on the north side of the Manitoba Railway, at Armstrong's station, for one year from noon of that date. The defense was that the agreement to insure was not entered into until May 18th, three days after the property was destroyed, of which fact plaintiff had knowledge at the time, but withheld the information from the defendant, who made the contract and executed the policy in ignorance of the loss of the property. It appears from the evidence that an application for insurance was made by plaintiff, on either the fourteenth or fifteenth of May, to Milligan & Ermentraut, insurance agents in Minneapolis, in the form of a written memorandum left at their office with their clerk, calling for $1,000 insurance on wood, “on north and south sides” of the Manitoba Railway at Armstrong's station. It is customary for insurance agents, when they have no company in which to carry a risk, to place it with some other agency, in which case the agency which takes the risk, after writing up the policy, intrusts it to the other agency to deliver, and to collect the premium, and then the two divide the commissions between them.

In the present instance, Milligan & Ermentraut, having no company in which they could carry the risk, on May 15th, took plaintiff's memorandum to the office of Cheeney, the agent of defendant, and not finding him at home, left it with his clerk, with the request to have it written up. The clerk promised that the matter would be attended to, but in fact she had no authority to accept applications, or bind the defendant company. The application was called to Cheeney's attention about 4 o'clock in the afternoon of the same day, but, it being in the “blanket” form, he could not accept the risk, and took no action in the matter. He supposed that...