WYOMING FARM BUREAU MUTUAL INSURANCE CO. v. Smith, Civ. No. 1120.
| Decision Date | 25 October 1966 |
| Docket Number | Civ. No. 1120. |
| Parties | WYOMING FARM BUREAU MUTUAL INSURANCE COMPANY, a Corporation, Plaintiff, v. Curtis L. SMITH and Jamie L. Smith, Defendants. |
| Court | U.S. District Court — District of Montana |
Corette, Smith, Dean & Robischon, Butte, Mont., for plaintiff.
Knight & Dahood, Anaconda, Mont., for defendants.
This action for a declaratory judgment is brought by the plaintiff (called the Company) to determine its liability to the defendants for losses which the defendants suffered as the result of a hostile fire. Defendants (called the Smiths) counterclaimed, claiming that the Company had insured them against loss by fire and praying for damages in the amount of $20,000.00. The case was tried to a jury. At the close of the evidence it appeared to the court that there were but two fact questions. Those questions were submitted to the jury and were answered. This Opinion constitutes the court's findings of fact and conclusions of law.
The facts are: The Company is an insurance company which writes fire insurance for individuals who are members of the Montana Farm Bureau and the Wyoming Farm Bureau. Prior to 1964, using its Standard Agent's Agreement, the Company appointed Robert L. Everhard as its agent in Granite County, Montana. The Standard Agent's Agreement described Everhard as a general agent for the purpose of soliciting applications for insurance and collecting and remitting initial premiums in the territory designated. Section 4 of the Agreement provided:
Some time prior to January 24, 1964, Curtis L. Smith sought out Everhard and told him that he, Smith, was interested in insurance for his poultry house. As a result Everhard went to see Smith at his home on the evening of January 24th. In the course of the evening Smith purchased a membership in the Granite County Farm Bureau for $20.00, signed an application for insurance and paid a first annual premium in the amount of $66.00. The application, together with the premium, was mailed to the Company at its Home Office in Laramie, Wyoming. The Home Office promptly rejected the application and returned it, together with the premium to Everhard, who received it in Philipsburg, Montana, on February 3rd. Everhard made efforts to reach the Smiths on that day but was unsuccessful. On the 4th of February the poultry house and contents which were described in the application, burned. On the day of the fire Mrs. Smith advised Everhard of the loss. He in turn advised her of the Company's position and gave to her the Company's letter of rejection, the rejected application, and the $66.00. Later the $66.00 was tendered back to the Company which refused to accept it.
The solution of this case depends upon the legal effect of what happened between Everhard and Curtis Smith on the night of January 24th. The Company had furnished Everhard with application forms and one of those forms was used. It was, except for a signature of Smith, completed in the handwriting of Everhard. The application contains the names of the parties, a description of the property, the fire insurance rate, the amount of insurance on the items of real and personal property, and the total premium. It likewise contained in the upper right hand corner of the front page a printed box as follows:
---------------------------------------
| Policy Term 365 (Days) (Years) |
| From Jan 25 1964 Year |
| To Jan 25 1965 Year |
---------------------------------------
The underscored writing was in ink in Everhard's handwriting.
On the reverse side of the application the following language appears:
"It is understood and agreed that the insurance herein applied for shall not be effective unless and until approved by the Company at its office in Laramie, Wyoming."
Notwithstanding the above language the Company had given Everhard actual authority to fill in the "Policy Term" provisions of the application exactly as he did fill them in. It appears without dispute from the testimony of the Company's witnesses that it was the practice of the Company to accept applications in this form and then when an application was approved to retroactively date the policy according to the commencing date of the term shown in the application. Any policy written in this case would have shown the term exactly as it appeared in the application, i. e., January 25, 1964, and the Company would not have returned the portion of the premium covering the period of time between the date shown on the application and the date that the Company approved it. In short, the Company would have kept the premium for that period during which it now asserts there was no insurance coverage.1
There was a dispute as to what happened at the time the application was written. The Smiths testified that they asked the agent when the coverage would be effective and that the agent told them as of January 25, 1964. The agent testified that he said it would be in a few days when the application was approved. These conflicts were resolved by the jury's answers to special interrogatories as follows:
1. At the meeting between the parties on January 24, 1964, was...To continue reading
Request your trial
-
Bretz v. Portland General Elec. Co.
...undisclosed intent of one of the parties." Miller v. Walter, 165 Mont. 221, 527 P.2d 240, 243 (1974); Wyoming Farm Bureau Mut. Ins. Co. v. Smith, 259 F.Supp. 870, 873 & n. 3 (D.Mont.1966), aff'd, 377 F.2d 918 (9th Cir.1967). 4 Whether a party has made a firm offer therefore turns on the fac......
-
Kent v. Association Life Ins. Co., 10502
...supports the court's finding to the contrary. 1 Plaintiff cites as controlling the District Court opinion in Wyoming Farm Bureau Mutual Ins. Co. v. Smith, 259 F.Supp. 870, D.C.Mont., while Defendant cites the opinion on appeal of the Ninth Circuit Court of Appeals in 377 F.2d 918. The salie......
-
Wyoming Farm Bureau Mutual Ins. Co. v. Smith
...All of the facts in the case are set forth with great particularity in the opinion of the district court. Wyoming Farm Bureau Mutual Ins. Co. v. Smith, et al., 259 F.Supp. 870, and it is therefore unnecessary to incorporate those facts in this opinion. The opinion sets forth the verdict of ......