Lingenfelter v. Phœnix Insurance

Philips, P. J. I. The first question, in order, raised by appellant is the sufficiency of the petition. The objections urged against it are, that it does not allege any breach by defendant of the contract, nor any refusal to issue the policy, nor does it set out what the conditions of the policy are. It will meet and dispose of much that is said in argument by appellant, to state here, that this action is not based on an executed policy of insurance. It is based upon a contract of insurance, performed by the plaintiff, and which the defendant refuses to observe by paying the conceded loss. “A contract for insurance is one thing, and a contract of insurance is another.” Wood on Ins., sect. 10. It is not essential to the validity of a contract of insurance that it should be evidenced by a written policy. [264] A parol contract is sufficient. Henning v. U. S. Ins. Co., 47 Mo. 432; Baile v. Ins. Co., 73 Mo. 73; May on Ins., ch. 2; Wood on Ins., sect. 4. Insurance is simply a contract “whereby one for a consideration undertakes to compensate another if he shall suffer loss.” May on Ins., sect. 1. Like any other contract, its completeness depends simply on the question, whether the minds of the contracting parties have met as to the subject matter to be insured, the amount and mode of payment of the premium, and the duration of the risk. The policy, in the absence of a contrary stipulation and understanding, during the negotiations, is only evidence of the contract. “It is but the form and embodiment, the expression and evidence, of what has already been agreed upon, adding nothing thereto, and detracting nothing therefrom. And whether issued immediately upon the arrival at a mutual understanding, dr subsequently, before the loss or after the loss, with or without knowledge, or not issued at all, the obligations of the parties are not affected. If the insurers refuse * * to'issue the policy because a loss has intervened, or any other change has taken place, which would not be a defence under the policy if that had been delivered, they will not be allowed by the law to take advantage of the fact that no policy has been issued. * * * An accepted application imports an agreement to issue the policy in execution of the contract.” May on Ins., sect. 43. The petition was amply sufficient to advise the defendant as to' the real ground of complaint, and the relief sought. It stated the essential facts out of which the liability arose. This was certainly good after verdict. If the petition was defective for lack of certainty or definiteness, the remedy was by demurrer, or motion. The defendant did not demur. There is a marked difference between a failure to state the constitutive facts and an imperfect statement of the facts. The former is’ never waived, while the latter is cured by verdict. Edwards v. R. R. Co., 74 Mo. 122. II. This is an action at law tried by both parties as [265] such. The plaintiff might have proceeded by bill in equity to compel the execution of the policy, or to have the case so treated as if one had been delivered. Or he could sue on such a state of facts as are disclosed in this record, on the contract of insurance. III. Counsel have discussed many questions suggested by the record, and they have exhibited much research after adjudicated cases. But it does seem to me, in view of the instructions given by the court at the instance of both parties, that the matter at issue is more one of fact than law. There is no question of the general agency and power of Hubert. His powers were plenary to solicit and receive applications for insurance, to issue policies, and to do all things pertaining thereto. The sum of the declarations of law made by the court is to this effect: If this agent authorized Burdick for him and in his name to solicit applications and collect premiums for him, and Burdick accordingly did this, ■ and obtained the application in question, received the premium, or its equivalent, and forwarded the application to Hubert, who received and approved the same before the fire, this bound the company. There is no occasion for the application or discussion of the maxim: delegatus non potest delegare ; for it may be conceded that Hubert had no power to delegate his agency to another or to sub-let it. But he may employ clerks and sub-agents, whose acts, if done in his name and recognized by him, either specially or according to his usual method of dealing with them, will be regarded as his acts, and as such binding on the principal. Bodine et al. v. Exchange Ins. Co., 51 N. Y. 123 ; 4 Waite’s Ac. & Def. 32. The letter of Hubert to Burdick authorized him in his behalf to solicit applications and to collect premiums, and to make out applications in his name. Burdick testified that he had been in the habit of so doing, and that Hubert issued the policies accordingly, making the date of the risk conformable to that expressed in the applica ? tion. He does not claim that he was acting for and on behalf of the defendant by any delegation of authority from it, but for and on behalf of Hubert, and through him. He further testified that Hubert never, until after this loss, stated to him that he either reserved the right to, or in fact did change the date when the risk should attach. It would perhaps be tenable to say, that if he in fact did so deal with the applicants at Burlington Junction through Burdick, it would be the same as if he had done so propria personœ. But the instructions go further, in the interest of the defendant, and declare that it must also appear that Hubert received and approved this application before the loss. occurred. If he did so receive and accept it, that concluded the contract of insurance as much so as if he had issued the policy on the thirtieth day of January, to take effect from that date. May Ins., supra. It is true that Mr. Hubert testified that he did not accept this application before the loss; but there are facts and circumstances in evidence from which a jury might not unreasonably have found the fact to be otherwise. In the first place, the application by the usual course of mail, would have reached him by one or two o’clock, p. m., January 31." He was at home, and being a man of affairs, actively engaged in this business, and other matters, the presumption would not be unreasonable, but fair, that he got his mail promptly and opened and read his letters on the instant. He admitted that he did receive this letter and application about five p. m. on the thirty-first. He gives no satisfactory reason for this delay. Then, to further escape the reasonable presumption that a business man would, with little delay, open and read his letters and papers, especially on so important a matter as an application for insurance, when a night’s delay might be ruinous to the applicant, he says he did not examine this letter and application until after he had enjoyed a night’s repose, and plaintiff’s house and property had gone to ashes (?). His excuse is most flimsy and unsatisfactory, to say the least of it. It was unusual [267] and ont of the ordinary course of business. He vas directly contradicted by the testimony of Mr. Anderson, who testified that Hubert on the morning of the first of February said the only reason he did not issue the policy on the thirty-first was for want of time or pressure of business. If that was so he had accepted the application, before the fire. All that remained to be done by him was to issue the policy. In such case the aggregatio mentium has taken place, and the contract is obligatory. Keim v. Ins. Co., 42 Mo. 41-42. There are other important facts indicating an acceptance. The witness Seyster, testifying on behalf of defendant, on cross-examination, stated that Hubert, on the morning of February 1st, after the fire, was objecting to Mr. Anderson, representing plaintiff, on account of the deed plaintiff had to the property, stating that if the deed was all right the company would pay, etc. He was not objecting on account of the non-acceptance of the risk. It is further observable, that on the morning of the fire, and before he had heard of it, as he now claims, he was making out the policy, and of course had previously approved the application; but remarkably enough, the policy which he says he drew up, as produced by him at the trial, had the risk to begin at noon of that day — February 1st — instead of noon January 30th, as expressed and stipulated in plaintiff’« application when his sub-agent took plaintiff’s money. Burdick testified that Hubert, in none of the interviews, made any objection about the non-payment to him of the premium. If :by the course of his dealing with Burdick the premiums collected by Burdick were usually transmissible at the end of the month, the payment made by plaintiff was good. Lungstrass v. Ins. Co., 48 Mo. 206. Under the instructions, applicable to the case, the material issue was one of fact, and was found against the defendant by the court sitting as a jury. On the conflict of testimony the finding of the jury is conclusive on this court. Gregory v. Chambers, 78 Mo. 298. IV. It is further objected by appellant that the de [268] iendant did not at the time of affecting the insurance have the fee simple title to the property insured, as he represented in his application. A careful examination of the evidence satisfies us that this objection is not sustained by the facts. The plaintiff had been negotiating for the purchase of this property some time prior to January 30, 1882. On the twenty-fourth of January the trade was completed, and a deed was made, but some question was raised by the purchaser as to a stipulation about the taxes. The purchase money was withheld until this could be rectified, and on the day of the contract of insurance between Burdick and plaintiff, telegraphic information was received that the deed was in bank all right, and thereupon Burdick issued the application. The deed was not taken from the bank perhaps until a day or two thereafter, as the parties had to go some distance to the bank for it. The deed being held in escrow for the payment of the purchase money, when the payment was made, which was prior to the first of February, the title passed. Besides, the plaintiff was placed in possession of the property on the thirtieth of January, and the leases thereon were turned over to him. These facts put in him, at least, the full equitable title, and entitled him to maintain an action for the legal title. This, on well considered authority, was a compliance with the stipulation or representation made in the application. If he were the owner at the time the loss occurred this is sufficient. Gaylord v. Ins. Co., 40 Mo. 17; Insurance Co. v. Haven, 5 Otto 242. There was no fraud practiced or intended to be practiced in this respect, by plaintiff on the defendant. His title was good to the property when the loss occurred, and the defendant should perform its contract. The judgment of the circuit court is affirmed. All concur.