54 P. 180 | Or. | 1898
delivered the opinion.
This is an action on an alleged oral preliminary contract for insurance. The complaint, after showing the ownership of the property and its value, states, in brief, that on August 20, 1896, while plaintiff was such owner, defendant by verbal contract insured the property against loss or damage by fire in the sum of $850 for a period of two months, in consideration of a premium of $12.75; that by the terms of the agreement defendant undertook to write up and deliver to plaintiff a policy of insurance covering said property within a reasonable time, upon the delivery of which plaintiff was to pay the stipulated premium ; that a portion of said property was afterwards consumed by fire and plaintiff’s damages under the contract were $650, for which amount he prays judgment. A tender of the premium and a demand for the policy on the part of the plaintiff and a
At the trial the court instructed the jury, among other things, that the defendant company could claim no exemption from liability on account of any provision the policy might or would have contained if it had been issued, and refused an instruction asked for to the effect that if the jury should find from the evidence that nothing was said by plaintiff or the defendant’s agent at the time the alleged verbal agreement was entered into concerning the kind of written policy which was in contem
Two remedies seem to have grown up and are now well established by authority for redress upon a preliminary oral contract for insurance of the nature of the one here involved. One is in equity, to require a specific performance of the agreement to issue the policy; and having acquired jurisdiction for that purpose the court will, in order to avoid a multiplicity of suits, administer full relief and decree a recovery for the amount of the loss sustained : Baile v. St. Joseph Insurame Co., 73 Mo. 371; Eames v. Home Insurance Co., 94 U. S. 621; Commercial Mut. Insurance Co. v. Union Mut. Insurance Co., 60 U. S. (19 How.) 318 ; Croft v. Hanover Insurance Co., 40 W. Va. 508 (52 Am. St. Rep. 902, 21 S. E. 854); McCann v. Ætna Insurance Co., 3 Neb. 198; Insurance Co. v. Colt, 87 U. S. (20 Wall.) 560. The other by an action at law directly upon the oral or verbal agreement, and the relief administered will be damages measurable by the loss sustained to the property covered by reason of its injury or destruction by fire, under the terms, limitations and conditions of the agreement: Campbell v. American Insurance Co., 73 Wis. 100 (40 N. W. 661); Mobile Insurance Co. v. McMillan, 31 Ala. 711; Angell v. Hartford Insurance Co., 59 N. Y. 171 (17 Am. Rep. 322); King v. Cox, 63 Ark. 204 (37 S. W. 877) ; Myers v. Liverpool Insurance Co., 121 Mass. 338.
The question, involved here is whether, in an action upon the verbal agreement to insure, the policy which the insurer undertakes and agrees to issue shall be considered as a factor in any manner regulating or circum-
In Barre v. Council Bluffs Insurance Co., 76 Iowa, 609, (41 N. W. 373), Beck, C. J., says: “While the action is not upon the policy of insurance, it cannot be doubted that defendant’s liability must be determined by the terms and conditions of the policy, which also must determine the plaintiff’s measure of damages in case ho recovers. The action is on an agreement to issue a policy . Now, it is plain that plaintiff’s damages are just what he would have recovered if the policy had been issued and the suit brought thereon. It is also plain that defendant undertook to issue a policy in the usual form of its policies covering like risks. The law will presume that the minds of the contracting parties met upon a contract containing the terms and conditions of the policy usually issued by defendant covering like risks.’’ In Eames v. Home Insurance Co. (94 U. S. 621), Mr. Justice Bradley says concerning the contract to insure : “ 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 are 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
It has also been held, as before stated, that the relief is the same whether it is sought in equity to enforce specific performance and a decree for damages in pursuance thereof, or at law directly upon the contract for recovery of damages for a breach thereof in neglecting or refusing to issue the policy : Nebraska Insurance Co. v. Seivers, 27 Neb. 540 (43 N. W. 351); Gold v. Sun Insurance Co., 73 Cal. 217 (14 Pac. 786). Turn the proposition, therefore, whichever way we may, the policy itself, which is in the mind of the parties when the preliminary agreement is entered into, — the one in form which it is usual for the company to issue covering like property, unless otherwise stipulated, — becomes a controlling factor in determining the relief to which the assured is entitled. In further support of these various propositions, see Van Loan v. Farmers’ Insurance Association, 90 N. Y. 280 ; Home Insurance Co. v. Favorite, 46 Ill. 263 ; Hubbard v. Hartford Insurance Co., 33 Iowa, 325 (19 Am. Rep. 305); Smith v. State Insurance Co., 64 Iowa, 716 (21 N. W. 145); State Insurance Co. v. Porter, 3 Grant, Cas. 123; Newark Machine Co. v. Kenton Insurance Co.,
Now, where the policy contains stipulations voiding it on account of certain conditions existing at the time of
Reversed.
Note. — The validity of oral contracts of insurance is considered, with a collection of the authorities, in the following annotated cases: Ruggies v. American Ins. Co., (N. Y.) 11 Am. St. Rep. 674 ; long v. North British Ins. Co., (Pa.) 21 Am. St. Rep. 879; Croft v. Hanover Ins. Co., (W. Va.) 52 Am. St. Rep. 902; Newark Machine Co. v. Kenton Ins. Co., (Ohio) 22 L. R. A. 769.—Reporter.