90 Minn. 321 | Minn. | 1903
Action to recover a premium alleged to be due upon a policy of insurance claimed to have been sold by plaintiffs to defendant. Plaintiffs had a verdict for a portion of the amount sued for, and appeal from an order denying their motion for judgment for the full amount notwithstanding the verdict.
The facts are as follows: Some negotiations were had between the plaintiffs and defendant looking to the issuance of an employer’s liability insurance policy to defendant, pursuant to which plaintiffs caused to be issued by the Ocean Accident & Guaranty Company, a corporation
The defense interposed at the trial was (1) that the policy had never been accepted by defendant, and never became operative as a contract between the parties; (2) that the policy was cancelled by mutual consent of the parties on July 10, at the time it was finally returned to plaintiffs by defendant. The trial court instructed the jury that if defendant retained the policy after its receipt an unreasonable time, without objecting to its form or contents, such act would amount to an acceptance, and bind defendant to pay the premium therefor; that, if the jury so found, they would return a verdict for plaintiffs, but that in no event could plaintiffs recover more than $10.25, the same* being the earned portion of the premium to the date when the policy was returned to them, on July 10. The latter part of _ this instruction was given on the basis that the evidence showed, as a matter of law, a cancella
The only question we deem it necessary to consider is whether the evidence is conclusive against the contention, of defendant that the policy was cancelled by the consent of the parties at the time of its return to plaintiffs on July 10, though, in view of a new trial, we may say in passing that the question whether defendant retained the policy an unreasonable length of .time was, under the evidence, properly submitted to the jury. If the policy was cancelled, and that fact appears conclusively from the record, the trial court was entirely correct in instructing the jury as it did; but, if it does not so appear, the question was one of fact for the jury to determine. The record does not disclose the views of the trial court upon this question, but we assume that it came to the conclusion that the question was one for the jury, and for that reason denied the motion for judgment notwithstanding the verdict and granted a new trial.
It is contended by counsel for appellants that the policy was not can-celled, and that they are entitled to judgment for the full amount of the premium, the jury having found by their verdict an acceptance of the policy by defendant when it was first delivered. The only ground urged in support of this claim is that defendant could not effect a cancellation of the policy, for the reason that it had not complied with its terms giving the right of cancellation. This is based on that part of the policy which provides that it may be cancelled by the insured by notice in writing to the company, “provided the premium shall have been paid.” It is urged that, because the premium in question had never been paid, defendant was in no position to demand its cancellation. We do not concur in this view of the case. If it may be said that this provision of the policy is applicable as between these parties, it is clear that plaintiffs waived it, or at least whether they did so waive
Whether a cancellation of the policy could be effected as to the insurance company before the full premium had been paid, by a waiver of such payment on the part of the agents without the consent of the general manager, as provided in the policy, we need not determine. The rights of the company in that respect are not here involved. The evidence made the question, as between plaintiffs and defendant, one of fact for the jury to determine; and the court below properly granted a new trial, instead of judgment in favor of plaintiffs notwithstanding the verdict.
Order affirmed.