Giddings v. Phœnix Insurance

Norton, J. — This is an action to recover three hundred and fifty dollars for the loss of a house by fire alleged to have been insured by defendant. It is substantially alleged in the petition that defendant by its agent, Bryan, issued its policy to plaintiff, dated December 8,1877, insuring said house for the period of one year; that, on the eighth of February, 1879, said policy was continued by renewal for one year, and in 1880 for one year more; “ that it was agreed between plaintiff and Bryan, defendant’s agent, that said policy should not expire ; that said Bryan should keep the same continued by renewal from year to year, and also agreed that plaintiff should have time to pay premiums, and pay the same at his convenience; that plaintiff was informed by defendant’s agent that his policy, commencing in 1881, for one year, had been renewed, and that it would not affect his policy if certificates of renewal were not delivered before any accident by the burning of the property insured ; that on the nineteenth of September,' [277] 1881, the house was destroyed by fire, of which due notice was given, but defendant refused to adjust and pay the loss.” Defendant in its answer, after denying the averments of the petition, sets up that the policy mentioned in the petition expired on the eighth of February, 1881, and that plaintiff: neither made, nor attempted to make, any contract or agreement whatever for the renewal of said policy on the said eighth of February, or at any other time, and that plaintiff has not at any time paid or offered to pay any money for the renewal of said policy ; that the policy specifies that it dan only be renewed by payment of the premium, and that the plaintiff was informed by defendant’s agent that he was not authorized to renew said policy without the payment of the premium therefor on such renewal. On the trial judgment was rendered in favor of the defendant, from which the plaintiff has appealed, and assigns for error the action of the court in giving and refusing instructions. It is sufficient to say of the instructions that were given, that it clearly appears from them that the court tried the case on the theory that all contracts and negotiations between, plaintiff and defendant’s agent as to the terms and contract of insurance of the property in question, and the renewal thereof, had or made before or at the time of the issuing of the policy, must be considered as merged in the written policy, and that unless defendant did by its agent renew said policy, and thus continue it in force till the eighth of February, 1881, and did by its agent, within one year before the eighth of February, 1881, or after that time and before the loss occurred, agree with plaintiff to renew said policy for another year from the eighth of February, 1881, the jury should find for the defendant; and that if they believed that such agreement as above set forth was made they should find for the plaintiff. The instructions that were given embraced this theory [278] of the case, and the question as to whether or not such, agreement upon which plaintiff’s right to recover was. based was fairly submitted to the jury. The evidence on this question was conflicting, and whether it preponderated for or against the plaintiff was for the jury, and not for ns, to decide. We have been cited to a large number of authorities' by counsel on both sides, and without entering into a critical analysis of them it is sufficient to say that many of them have no application to the case at bar, and those' of them that are applicable sustain the theory on which the case was tried. The point made, that the court admitted improper evidence, cannot be considered, because in the motion for new trial no such ground was assigned as a reason for granting the motion. Judgment affirmed, in which all concur.