150 P. 996 | Cal. Ct. App. | 1915
This is an action to recover the sum of three thousand dollars upon an alleged renewal of a policy of fire insurance. The original complaint was filed on November 19, 1906, and the cause came to issue and trial upon said complaint in April, 1907, whereupon a judgment was entered in favor of the plaintiff and against the defendant for the sum demanded in said complaint. Upon an appeal from said judgment it was reversed, the opinion of this court reversing the same being reported in
The facts of the case as presented upon both trials are practically undisputed. The plaintiff, a business corporation having a factory and warehouse in the city of San Francisco, had prior to April 18, 1906, carried with the defendant a policy of insurance in the sum of three thousand dollars on its stock of merchandise in its said factory and warehouse, which policy was by its terms to expire at 12 o'clock noon of said eighteenth day of April. The firm of brokers who handled appellant's insurance as its agents were Watson, Taylor Sperry, and a young man named Roy, who was an employee of that firm, had the insurance of the plaintiff actively in charge. The defendant was represented in San Francisco by the firm of Edward Brown Sons, and the city department of their business was handled by a Mr. Fred Brown, one of the employees, though not a member of the firm. On April 17, 1906, at about the hour of 5:30 P. M., Mr. Roy came into the office of Edward Brown Sons with some papers technically called "renewal slips," and which contained sufficient data to enable the insurance company to write new policies in renewal of those about to expire. *649 Mr. Brown was about to close the office of his firm for the day when Roy entered and said, "Fred, here are some renewals for you." Brown replied, "All right," and without opening or reading them put them in his drawer, and then closed and left the office for the day. It appears that Brown did not examine these renewal slips at the time, and it is not shown that he knew to what property or policies these renewal slips related. On the morning of the following day the earthquake occurred, and during the afternoon of that day the factory and stock of goods of the plaintiff were destroyed by fire.
Upon the first trial of the case the foregoing facts appeared; and in addition thereto the witness Roy testified "that it is customary with all insurance companies to have what they call expiration notices sent to the brokers of the assured a month before the policy expired at least." He further testified that "they always send out expiration notices, and if the policy was to be dropped they marked it on the expiration notice." This witness could not say that the particular notice had been sent in this case, and could not remember any notice that the policy was to be dropped.
Upon the foregoing state of the evidence the plaintiff recovered judgment upon the first trial. Upon appeal to this court this judgment was reversed, Mr. Presiding Justice Cooper writing the opinion of the court, and treating the language of the plaintiff's complaint as alleging an agreement for the renewal of the plaintiff's insurance initiated by the action of Mr. Roy in bringing to the defendant's office the written forms or slips for such renewal, and their receipt and acceptance by Mr. Brown on behalf of the defendant on the evening of April 17, 1906. The court held that this evidence was not sufficient to show that the minds of the parties had met upon the subject of the renewal of this policy, since it did not appear that Mr. Brown was informed of the contents of the renewal slips, or the property or policy to which they related, at the time of the brief conversation between himself and Mr. Roy, or at any later time before the destruction of the property by fire on the following day. In so ruling the court treated the asserted agreement of renewal as one in which the plaintiff had made the initial offer for a renewal of the policy, which offer the defendant had not been shown to have accepted. Upon petition for rehearing, however, *650 the plaintiff and respondent upon that appeal laid emphasis upon the testimony of the witness Roy as showing that it was the universal custom of insurance companies to send out expiration notices, and that the plaintiff relied upon the proof of this custom to support a presumption that such notice was sent by the defendant to the plaintiff or its agents in this instance, and hence that the initial offer to renew came from the insurer; and that this being so, the delivery of the written renewal slips by Roy to Brown constituted a completed agreement for renewal, even though Brown did not know the contents of the writing so delivered and received. In denying the petition for rehearing this court filed a brief supplemental opinion dealing with this phase of the case, and holding that the mere general statement of the witness Roy, that it was customary for companies to send out expiration notices, was insufficient to show that this particular company did send to this plaintiff a notice soliciting a renewal of the policy. In so holding the court called attention to the fact that the original complaint alleged and the court found that it was the plaintiff who first notified the defendant of its desire to renew the policy, and that it was the defendant who agreed and promised to renew it, and that there was no allegation in said complaint as to the defendant requesting and the plaintiff agreeing to a renewal.
Upon the return of the case to the trial court the plaintiff amended his original complaint by so broadening the language of its allegations as to meet the last criticism of the appellate court, and permit the plaintiff to offer proof that the initial step looking to a renewal of the policy was taken by the defendant.
Upon the issues thus presented the cause was retried, the plaintiff offering the same evidence as before, including the testimony of the witness Roy given on the former trial. In addition to this the plaintiff produced Mr. Fred Brown to whom Roy had handed the renewal slips on the evening of April 17, 1906. Mr. Brown testified that it was the usual course of business of the firm of Edward Brown Sons to write up expiration notices about four weeks before the policy expired and send them to the agents of the insured, which in this instance would be the firm of Watson, Taylor Sperry. He was then shown, and identified, a blank form of such expiration notice as his company was accustomed to *651 send forth, and which he testified were filled out by writing in the name of the insured, the number of the policy and the date of its expiration. This form of these notices had printed in it the words "Renewal of same is respectfully solicited"; but the witness further testified that if the policy was to be discontinued a note to that effect was made upon the expiration notice. Mr. Brown had no recollection as to whether any such expiration notice had in fact been sent to the insured or its agents in this instance, and there was no evidence whatever offered aside from the foregoing testimony of Roy and Brown tending in any degree to prove that an expiration notice, which either solicited the renewal of the policy or gave notice of its intended discontinuance, was sent or received in this particular case.
This state of the pleadings, issues, and evidence presented upon the second trial of this cause and now before this court upon appeal involves the consideration in limine of the question as to how far the decision of this court upon the first appeal is to be treated as the law of the case. It is not disputed by appellant that insofar as the pleadings as framed for the purposes of the second trial permit the same issue to be presented as that tendered upon the first trial, the decision of this court in its main opinion upon the former appeal must be held to be the law of the case. In other words if the plaintiff is to be considered as having taken the initiative in seeking to have its insurance policy renewed by the tender of the renewal slips by Roy to Brown on the evening of April 17, 1906, then the main decision of this court upon the former appeal must be held to be conclusive upon the trial court. On the other hand, insofar as the supplementary opinion of this court upon denying the petition for rehearing upon the former appeal undertook to decide a question not presented by the pleadings and issues then before the court, such decision could not have properly become the law of the case so as to be binding upon the trial court on its second trial upon different pleadings and other and further evidence. To the foregoing extent we agree with the contention of the appellant that the supplementary opinion of this court upon the former appeal is not to be treated as the law of the case in the sense that it was binding upon the lower court upon the second trial, or upon this court upon this appeal. *652
The next and only other question involved in this appeal is this: Was there any evidence presented by the plaintiff tending to prove that the defendant sent to the plaintiff, either directly or through its agents Watson, Taylor Sperry, an expiration notice notifying it of the approaching expiration of its insurance policy, and soliciting a renewal of the same? If there is such evidence then we are of the opinion that the acceptance of such an offer of renewal, evidenced by the action of Mr. Roy in presenting the renewal slips to Brown on the evening of April 17, 1906, would have constituted a completed agreement for the renewal of this insurance policy, so as to have entitled the plaintiff to recover in this case, even though it appeared that Brown did not examine the renewal slips or become aware of their contents before the destruction by fire of the insured property upon the following day. (Civ. Code, secs. 1582, 1583; Howard v. Daly,
Judgment and order reversed.
Lennon, P. J., and Kerrigan, J., concurred.