Shackleford & Dickey v. Indemnity Fire Insurance

Ames, C. The defendant in error, which was also defendant below, issued and delivered to the plaintiffs a policy of fire insurance on certain personal property to be anJ remain in force during a certain interval of time while the property should be contained in a certain building at 1510 California street, in the city of Omaha, “and not elsewhere.” The policy stipulated that it should “not be valid until countersigned by the duly authorized agent of the the company at Omaha, Neb.,” and it was countersigned by one O. D. Mullen as such agent, but was delivered to the plaintiffs by one Charles O. Talmage in exchange for a like policy on the same property previously issued through the same agency by another company. At the time of the delivery of the first mentioned policy, Talmage agreed that the premium thereon should be satisfied by the application thereto of the amount of unearned premium to which the plaintiffs were entitled on the policy taken up, [681] and it does not appear that there was any otter payment of premium on the new policy. This transaction was on the 25th day of March, 1902, and the period of insurance recited in the contract was of one year from that date. Shortly before the first day of May, 1902, the plaintiffs told Talmage that they intended to remove the insured property on that date to another building situated on a different street in the city, and that they should want insurance, after the removal, in the new location. To this Talmage replied that he would leave the policy with the plaintiffs, and that when they moved he would have it fixed so that it would be good at the new place.. He said: “All right, go ahead and move, and I will see that your transfer is made, when your' property is moved,” he says, “I will see to it.” Q. .“Is that all that he said?” A. “Well, that is about all that I recollect in regard to it” * * * Q. “What.was said?” A. “I said: ‘Mr. Talmage, we have begun to move, and we will have everything moved by the first of May,’ I says, ‘we have to give possession in here, the property is sold where we are, and we will have everything on the grounds up there by the first of May, and I want our insurance transferred by the first day of May,’ I says, ‘we will stand less risk at that time than any other time, and we will have to have everything aAvay from here by the first, and so I Avant the transfer made by the first’; and he said: ‘All right, I will see to it, now give yourselves no uneasiness or any: thing about it,’ he says ‘I will see to it myself and see that your transfer is made by the first day of May.’ ” The foregoing is the substance of all the evidence upon this branch of the case, and from it we are unable to infer with any degree of certainty Avhat were the relations of Talmage with the defendant company. He does not appear to have Avritten or signed the instrument, or to have joined or participated in so doing, or to have received, or to have been authorized to receive, the .premium upon that [682] or any other policy issued by this or any other company, nor did he promise to make any indorsement upon the instrument, or enter on behalf of the company or otherwise into any contract or stipulation with reference to it or to the removal. His sole promise was that he would see to it himself “and see that your transfer is made by the first day of May,” that is, that he would see that it was done, not that he would do it. But if he had promised to do the act himself, such promise would have been no evidence of authority. All that is shown that he ever did do on the behalf of the company, or, perhaps, on the behalf of the authorized and contracting agent of the company, was to deliver the policy in question and receive from the insured the former policy of the other company, and so far as we know, that was all he ever was employed or authorized to do. The policy remained in the possession of the plaintiffs, and was never by them presented to Talmage, or to anyone else, for the purpose of having any indorsement made upon it, or for the purpose of having it reformed or modified in any way or manner, and it is the settled law that without modification or reformation, or something equivalent thereto, it ceased to be operative or in force upon the removal of the property from the building described in it. Burlington Ins. Co. v. Campbell, 42 Neb. 208; Davison v. London Fire Ins. Co., 189 Pa. St. 132. The mere fact that the company was charged through Talmage with knowledge of the removal after it took place, if it ivere so charged, which we do not decide, and that it remained quiescent, was insufficient to revive its liability. The contract was terminated by the fact of removal, and it could have regained vitality only from some affirmative act by or on behalf of the company equivalent to the making of a new contract of insurance. Davison v. London Fire Ins. Co., supra; Connecticut Ins. Co. v. Smith, 10 Colo. App. 121; English v. Franklin Fire Ins. Co., 55 Mich. 273. All the foregoing facts were disclosed by the evidence offered on behalf of the plaintiffs in an action on the policy for a loss occurring after the removal, at the conclusion [683] of which the court instructed a verdict for the defendant. We recommend that the judgment be affirmed. Letton and Oldham, 00., concur,’ By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be ' Affirmed.