Whitman v. Milwaukee Fire Insurance
107 N.W. 291
Wis.
1906
Check Treatment
MaRShall, J.

It is considered tibe determination of the court below, as to there being an entire absence of evidence warranting the jury in reasonably coming to the conclusion that a contract of insurance was made between respondent and the Laufenbergs, cannot be disturbed. It is absolutely essential to any contract that the minds of the persons representing the two sides of the matter shall consentiently meet upon the major proposition constituting the same; upon a particular result to be accomplished, involving mutual obligations for future performance, or a consideration moving in prcBsenti from one to the other as an equivalent for something later to be rendered by such other or some person to the former or some one. Contracts of insurance form no exception to this. One of the prime essentials of such a contract is the time of the commencement of the risk. We fail to find any proof that such element was agreed upon in the instance under consideration. It was not even mentioned. One of the Laufenbergs testified at one time during the trial that- the agent promised that the insurance should take effect at noon on the day the application was made, but he later admitted that such was not the fact; tha^ a remark of that kind was made to him by the agent on a former occasion of insuring the property, but that on the one in question nothing whatever on the subject was said. So the want of evidence on that point in appellant’s favor, with the evidence against him, shows most conclusively that no contract in piwsenti was thought of at the time the application was made. The real transaction, according to the testimony of Laufenberg, was an agreement that the agent would attend, in due time, to the matter of taking such further steps as were necessary to effect the insurance, subject to the action of the respondent. No money was paid. The only assurance given by the agent, as said by Laufenberg, was that the former “would see to it, take care of it so it would be all right,” would “get a policy.” That is consistent only with the idea that the only contract of *130insurance in contemplation was one to be evidenced by a policy issued in the usual way.

As indicated in Taylor v. Phœnix Ins. Co. 47 Wis. 365, 2 N. W. 559, 3 N. W. 584, the presumption arising from the ordinary transaction of making a written application for insurance is that the actors in the transaction had in mind a contract to be closed at some subsequent time. The first step is not supposed to involve binding contractual relations; it suggests only future probabilities in that regard. To' displace that, by establishing, as a fact, that something out of the ordinary was contemplated: the actual closing of a contract, precedent to the issuance of a policy in the ordinary way such contracts are made, pretty clear evidence is required showing that the minds of the parties met on that precise proposition. Evidence that the circumstances characterizing an application were closed by a mere promise on the part of the agent to attend to the matter of obtaining a policy of insurance, is, as suggested in the case cited, proof that no contract of insurance was supposed to be closed in prcesenti.

We need not continue the discussion. The principle involved is pretty fully illustrated in Wood v. Prussian Nat. Ins. Co. 99 Wis. 497, 75 N. W. 173, and the early case of Strohn v. Hartford F. Ins. Co. 37 Wis. 625. In the first case cited it was said that an oral contract of insurance, like any other, requires a meeting of minds as to all of the essential provisions, leaving nothing to be done but to execute it. The evidence required to show such meeting of minds, when the nature of the contract is of such an extraordinary character as that of an oral one of insurance,' must necessarily be pretty definite. It takes evidence sufficient to satisfy the mind to a reasonable certainty to establish in a court of justice the affirmative as to any matter in dispute. When such affirmative is to the effect that an occurrence of an extraordinary character has taken place, circumstances which ordinarily characterize a common transaction of a particular sort *131•must necessarily be supplemented by other circumstances of considerable weight, to show that a radically different transaction was in the minds of both parties in the particular instance. There are no such circumstances here. Rather, there is positive evidence, and circumstances as well, confirmatory of the idea that the Laufenbergs simply made an application for a policy of insurance.

It has been doubted by some writers as to whether an action can be legitimately maintained on an oral contract of insurance, in view of the state of the law at present. Duer, Ins. 601 May, Ins. § 14. Most courts, however, in harmony with our own, hold that parties may properly make such contracts under the elementary principle that there is no limitation upon the right of private contract outside of the written law. Some courts have specialized, without any good reason, as to insurance contracts, holding that one may be complete without the element of time for the commencement of the risk being settled. Potter v. Phenix Ins. Co. 63 Fed. 382. Such authorities, however, are highly exceptional and are not to be followed. This court holds to the idea that insurance contracts are to be treated as regards elementary principles the same as others. There are many authorities elsewhere to the same effect as to the precise question under consideration. The following are a few of the illustrations at hand: Comm. Mut. M. Ins. Co. v. Union Mut. Ins. Co. 19 How. 320; Baptist Church v. Brooklyn Fire Ins. Co. 28 N. Y. 153; Tyler v. New Amsterdam F. Ins. Co. 4 Rob. 151; Hartshorn v. Shoe & L. D. Ins. Co. 15 Gray, 240, 244, 247, 249; Orient Mut. Ins. Co. v. Wright, 23 How. 401, 409; Piedmont & A. L. Ins. Co. v. Ewing, 92 U. S. 377, 381; Kimball v. Lion Ins. Co. 17 Fed. 625; Hamilton v. Lycoming Ins. Co. 5 Pa. St. 339; Scammell v. China Mut. Ins. Co. 164 Mass. 341, 41 N. E. 649.

By the Court. — The judgment is affirmed.

Cas son at, C. I., took no part.