Western Assurance Company v. McAlpin

• Decision Date: 02 November 1899
• Docket Number: 2,977
• Citation: 55 N.E. 119,23 Ind.App. 220
• Parties: WESTERN ASSURANCE COMPANY v. MCALPIN, EXECUTOR
• Court: Indiana Appellate Court

55 N.E. 119

23 Ind.App. 220

WESTERN ASSURANCE COMPANY v. MCALPIN, EXECUTOR

No. 2,977

Court of Appeals of Indiana

November 2, 1899

From the Marion Superior Court.

Affirmed.

S. N Chambers, S. O. Pickens and C. W. Moores, for appellant.

W. N Harding, A. R. Hovey and E. A. McAlpin, for appellee.

ROBINSON J. Henley, J., dissents.

OPINION

ROBINSON, J.

Appellee sues upon an oral contract to insure. The first paragraph of complaint, after showing location of property, ownership by insured at the time of the contract, and of the loss, the period and the amount of insurance and premium paid, avers that, on a date named, appellant agreed, through its agent, to deliver appellee's decedent within a reasonable time its policy of insurance upon the property, in a named amount, against loss and damage by fire; that while the agreement was in force the property burned; that immediately after the fire the agent was notified of the loss, and demand made on him for the execution and delivery of the policy, which demand and payment of the loss was refused. The second paragraph contains additional averments to the effect that at the time of the agreement to issue the policy the agent had policies of a certain form signed by appellant's president and secretary, and issued and delivered by appellant to the agent to be by him countersigned and delivered to persons insured; that by the terms of the policies issued by appellant in the usual form appellant promised to pay the loss sixty days after notice and proof of loss.

The complaint shows the parties to the contract, its subject-matter, an insurable interest, the duration of the risk, the amount insured, and premium paid. And it is averred that the company, through its agent, agreed to make and deliver to appellee's decedent, within a reasonable time, its policy of insurance. Nothing as to the terms and conditions of the contract were left open. They were all agreed upon. The policy agreed to be issued is not the foundation of the action, in the sense that it must be filed with the complaint. Thus in New England Ins. Co. v. Robinson, 25 Ind. 536, it is said: "The policy of insurance, which the company agreed to issue, was not the foundation of the action, and a copy thereof was not, under the code, required to be filed with the complaint. The company having refused to issue the policy, it was not necessary that the complaint should be special, and show the conditions complied with. Tayloe v. Merchants' Ins. Co., 50 U.S. 390, 9 HOW 390, 18 Curtis 191, 13 L.Ed. 187. The conditions precedent were waived by the refusal of the company to issue the policy. Post v. Aetna Ins. Co., 43 Barb. 351." See Gold v. Sun Ins. Co., 73 Cal. 216, 14 P. 786; Baile v. St. Joseph Ins. Co., 73 Mo. 371.

The facts found show that November 22, 1892, appellant issued its policy to George and Orme, partners, for one year for $ 10.13 premium; that afterwards, and during the life of the policy, Orme sold her interest in the property, a stock of furniture, to George, who was thereafter and at the time of the fire the sole owner; that one Crawford, from prior to November 22, 1892, continuously until after the 2nd day of May, 1894, was appellant's agent, and was also agent of other fire insurance companies, and as such agent had entrusted to him by appellant blank policies of insurance signed by the company's officers, and as such agent was authorized to receive applications for insurance, and to accept risks, to write and countersign such policies, deliver them to the insured and collect the premiums; that on the 18th day of January, 1894, Crawford called at George's place of business, where the property burned was located, for business other than insuring his property, to talk about trading property, and while there George informed the agent that the insurance on his property had expired, and that he desired to have it renewed for the same amount and upon the same terms as in the former policy; that the agent in response to this request then promised George that he would attend to the matter of renewing the insurance immediately; that the agent knew the property belonged at that time to George; that George informed the agent that his insurance had expired in substantially the following language: "My insurance is out. It is out now. I looked at the policy this morning;" that the agent then remarked, "Well, George, we don't want to burn out without any insurance; that must be attended to;" that George thereupon asked the agent which was the best company in his agency, and, being told by the agent that the Western Assurance Company was the best he had, George thereupon substantially said that that was the company he wanted; that the agent looked around at the stock of goods and asked George, substantially, how much insurance he wanted, and George thereupon told the agent that he wanted the same amount as had been carried in the old policy, just wanted the policy carried out, renewed; and thereupon the agent told George, in substance, that he would be out of town for a day or two, and that they would further talk of trading property when he returned; that when the request was made for insurance nothing was said as to the payment of the premium, but the agent had previous to that time issued to George two policies crediting at least one premium on account, not collecting the premium at the time of making the contract or at the time of issuing the policies, and the agent made no request that George should pay the premium for the policy he had requested, and a credit for the premium was contemplated by both parties, the agent being indebted to George for furniture; that the policy was not issued; that on the 28th day of January, 1894, the property was wholly destroyed by fire, of which the agent was verbally notified on the same day; that on February 3, 1894, George demanded of the agent the policy, which demand was not complied with; that on May 2, 1894, George tendered to the agent $ 10.13 in payment of the premium and demanded the policy, which tender was refused as was also the policy; that on April 30, 1894, George served upon appellant a verified proof of loss, stating therein that the property destroyed was covered by renewed insurance in appellant company on renewal of the former policy; that during the pendency of the action George died, and appellee was appointed executor; that the loss has never been paid.

As conclusions of law the court stated that there was a contract of insurance between appellant and George, entered into January 18, 1894, which was in force at the time of the fire; that appellee is entitled to receive of appellant $ 868, less $ 10.13 which appellant should have on account of premium.

It is no doubt true that where there is simply an offer to insure, without acceptance, or where anything is left open for future adjustment as to amount or duration of risk, or as to premiums, no contract to insure exists. It must clearly appear that all the elements essential to a valid contract are agreed upon. There must be an offer and acceptance of a complete contract to insure. Haskin v. Agricultural Ins. Co., 78 Va. 700; McCann v. Aetna Ins. Co., 3 Neb. 198.

The question presented is whether a contract to insure was consummated between appellant, through its agent, and appellee's decedent on January 18, 1894. A contract of insurance may rest in parol. In Eames v. Home Ins. Co., 94 U.S. 621, 24 L.Ed. 298, it is said: "It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount, and the rate of insurance is ascertained or understood, and the premium paid if demanded. It will be presumed that they contemplate such form of policy, containing such conditions and limitations as are usual in such cases, or have been used before between the parties." Hartford Ins. Co. v. King, 106 Ala. 519, 17 So. 707.

The findings aside from the recitals of any mere evidence they may contain, show a contract to insure between appellant company's agent and appellee's decedent, and not simply a contract to issue a policy of insurance. The agent had authority to receive applications for insurance and accept risks. The findings show the parties making the contract and its subject-matter. The time when the risk should begin was fixed by the agent agreeing to attend to the matter of insurance immediately. The amount of the risk, its duration, and the premium, were fixed by the old policy which was issued by appellant and to which the attention of the agent was at the time expressly directed for information. Home Ins. Co. v. Adler, 71 Ala. 516. Both parties understood the kind of policy that was to be issued. Nothing remained to be determined afterwards. Had the agent written a policy, which he could have done on the information he had, and upon tendering it to the insured the payment of the premium had been refused, he could have collected it by suit.

It has been held that a court of equity will enforce an oral contract for a policy, and, having jurisdiction for specific enforcement, adjudge the damages just as if the policy had been issued and suit brought on it for the loss of the thing insured. And the effect is the same whether the suit is on the contract for the loss under the risk or for breach of the contract for not insuring, because the loss is the measure of damages. Tayloe v. Merchants' Ins. Co., 50 U.S. 390, 9 HOW 390, 13 L.Ed. 187; Commercial Ins. Co. v. Union Ins. Co., 60 U.S. 318, 19 HOW 318, 15 L.Ed. 636; Baile v. St. Joseph Ins. Co., 73 Mo. 371. Wood on Fire Ins., § 11.

It is further argued that the complaint avers that the premium was paid; that the findings show that the premium was not paid. The findings show that nothing was...