King v. Hekla Fire Insurance

| Wis. | Nov 20, 1883

Cole, O. J.

This action is brought to recover damages for a breach of a contract to insure the plaintiff’s store or saloon. The property was insured by the defendant company by issuing the usual policy in writing for one year, the risk expiring on the 15th day of January, 1882. The claim of the plaintiff is that prior to the expiration of the policy the company, by its duly authorized agent, agreed to renew the policy, but that the company, after the property was destroyed, early in April, 1882, denied its liability for the loss, and insisted that the policy had never been renewed. The alleged agreement to renew was by parol. The learned counsel for the defendant concedes that a valid contract to insure or to renew a policy of insurance may be made by parol; but he insists that the evidence wholly fails to show that any oral contract to renew was ever actually made. This, of course, raises a simple question of fact upon the evidence. As we understand the proofs in the case, there was sufficient testimony given on the part of the plaintiff on the trial which warranted the jury in finding that the company, by its authorized agent, made a valid contract to renew the policy. There is testimony positive and clear to that effect. It is unnecessary to recapitulate it here.- It is true, all this, testimony was distinctly and positively denied or contradicted by the defendant’s witnesses, especially by the agent who, it is alleged, made the contract. But the probative effect of the testimony, the conflicting statements of the witnesses, and what was the real truth of the matter, were questions submitted to the jury under proper instructions.

It is certainly a correct proposition to say that the company could not be held liable for the loss unless a complete contract to renew was made by its agent — a contract that was mutually binding upon the insurer and insured. The transactions between the agents of the respective parties must have been something more than mere preliminary negotiations or conversations about renewing the policy; they must have resulted in an actual contract to renew the existing policy upon terms well understood at the time. And as the contract to renew was oral, the onus was doubtless upon the plaintiff to prove to the satisfaction of the jury that such a contract was made. The learned circuit court instructed the jury according to these views, and the jury, upon the evidence, found for the plaintiff. This fully disposes of some points which are discussed by defendant’s counsel in his brief.

There remains to be considered some exceptions which were taken to the rulings of the court in admitting or excluding evidence, in giving certain requests asked on the part of the plaintiff, and refusing some instructions asked by the defendant. We shall not attempt to notice all these exceptions in -detail, but barely indicate our views upon the more material •ones.

Eobine W. King was sworn as a witness for the plaintiff. He had acted for the plaintiff in making-the alleged com tract with the agent of the defendant. He was asked what the plaintiff told him about seeing Blair, the defendant’s agent, in regard to insurance, and what instructions were given him as to the transaction of the business. The evidence was objected to, but’ admitted. The fact that the witness was authorized to act for the plaintiff in the matter was conceded, but it is said he should not have been permitted to testify as to what instructions had been given him. We cannot see any valid objection to the testimony, in view •of the purpose for which it was offered. Its plain object was to prove what the contract for the renewal was: its precise terms and conditions. But it is further said the court refused to allow Blair to testify as to what instructions he had received about renewing the policy on the store or ■saloon. As a matter of fact, Blair did state that when he handed the renewal receipt on the dwelling-house to Byron King he informed King that the company refused to ■renew the policy on the store. And the witness testified that be never did in fact agree to renew that policy, thus-flatly contradicting plaintiff’s witnesses, who had testified that when he delivered the renewal receipt on the house he was asked where the renewal receipt for the store was, to-which he replied that he had not made it out, but “ would right away.” It was proposed to show, by entries made in the register kept by Blair, that he had been instructed not to renew the policy on the store. It was not claimed that notice of these entries or of the secret instructions ever came to the knowledge of the plaintiff or his agent. Thereat purpose of the proposed testimony was to confirm the. statements of Blair that he informed Byron King that, the company refused to renew that policy. Such being its object, we do not think there was any error in refusing it.

There were three instructions given at the request of the plaintiff which were excepted to. The second and third read as follows: Second. “If you'find from the evidence that the parties agreed that the insurance should be renewed without a payment of premium, and their minds met and they fully understood the terms of such renewal in all respects, and nothing remained to be done thereafter except to make out the.renewal receipt on the part of the company, iind the payment of the premium by the plaintiff, notwithstanding this was a verbal agreement, it was nevertheless a valid contract for the renewal of the policy, and the defendant is liable for the loss to the amount of the insurance.”' Third. “If you find that previous to January 15, 1882, the defendant company had issued a policy of insurance upon the building and stock in question which would expire on that date, and that about the time of its expiration the agent of the company, for and in its behalf, agreed with the plaintiff or his authorized agent to renew said policy, and that he, the agent of the company, would attend to it right away; and that their minds met as to the terms of such agreement; and that there was nothing further to be done between the parties, except that the agent of the defendant should make out and delivér to the plaintiff or his agent the renewal receipt or evidence of renewal, and that the plaintiff or his agent should then, or at some subsequent time, pay the premium,— then I instruct you that such an agreement would bind the defendant company to renew the policy, and they could only avoid liability upon such contract by tendering the renewal and .demanding the premium, and the failure of the plaintiff to pay the same; or by giving the plaintiff or his agent'notice that the defendant company had refused to carry the risk; and such tender of the renewal and demand of the premium, or the giving of the notice as before stated, in order to relieve the defendant from liability, must be done before the loss accrued and before they knew of the loss.”

We think these instructions were correct as propositions of law, and were applicable to the evidence given on behalf of the plaintiff. The first instruction was, in substance, that if the company, upon being informed of the loss, denied that the policy was renewed, and asserted that the company was in no way liable for the loss, and had no risk thereon, that this would amount to a waiver of the written notice and of the proofs of loss as prescribed in the policy. It seems obvious, if the company denied all liability on the ground that it had no insurance on the property, that it could not be necessary for the plaintiff to make proofs of loss.

Some of the instructions asked by the defendant were given, while others were refused. We do not think, however, that any request was refused which was proper and applicable to the case, and which was not embraced in the charge of the court. The proposition embraced in the tenth instruction, in substance was that the neglect of Byron King to investigate and find out when Blair handed him the envelope containing the renewal receipt on the house, whether it did not also contain the renewal receipt on the store, in' some way affected the liability of the company, is unsound. A contract to renew the insurance was or was not made. If it was made, any neglect of Byron King to ascertain or find out whether the renewal receipt for the store had been made out, would not relieve the company from its contract. This seems too plain to require discussion.

Taylor v. Phœnix Ins. Co., 47 Wis., 365" court="Wis." date_filed="1879-08-15" href="https://app.midpage.ai/document/taylor-v-phœnix-insurance-co-of-hartford-6602926?utm_source=webapp" opinion_id="6602926">47 Wis., 365, was an action upon the policy itself. The court held, that the parol negotiations did not amount to a complete contract of insurance inpraesanti, and therefore that there could be no recovery on the policy. The case is very plainly distinguishable from the one at bar.

Without further dwelling upon the case, we will say that we see no error in the record of which the defendant can complain.

By the Court.— The judgment of the circuit court is affirmed.