Costello v. Grant County Mutual Fire & Lightning Insurance

Timlist, J. The amendment of the findings in the equity suit brought to reform the application and policy in question was within the power of the court below. Keep v. Bander-son, 12 Wis. 352; sec. 2832, Stats. (1898). The dismissal of a complaint in a suit in equity on the ground that the plaintiff has mistaken his remedy and should have proceeded at law is no bar to the legal action thereafter commenced. Cramer v. Moore, 36 Ohio St. 347; Lore’s Lessee v. Truman, 10 Ohio St. 45; Pfennig v. Griffith, 29 Wis. 618. If it is at all material to the questions involved in this appeal, the jury was authorized to infer from the acts of Moody in transmitting the application of the plaintiff and the defendant’s acceptance of the application that Moody was an agent of the defendant. Sec. 1977, Stats. (1898), as on and prior to January 10, 1905; John R. Davis L. Co. v. Hartford F. Ins. Co. 95 Wis. 226, 70 N. W. 84. It is quite manifest that the principal question litigated between the parties was whether or not the defendant, or some one in its behalf, after having on January 10, 1905, accepted the application of the plaintiff for a policy of insurance to begin on January 2, 1905, changed the same after the fire loss so as to read [365] January 12tb instead of January 2d. Tbe application itself is in evidence and bears evidence of alteration from tbe “2nd” to tbe “12nd.” Tbe witness Moody testified that tbe figure “1” was inserted before tbe figure and letters “2nd” some time after it left his bands in transmission to tbe defendant, and that tbe figure “1” was not in tbe same ink as tbe figure “2” nor made with the same pen; and Mr. W. H. Pier, an experienced banker and penman, and others, after examining the application, gave a like opinion. Tbe application as now produced by tbe defendant reads “January 12nd.” One Higgins testified that on January 17th be called up tbe defendant’s secretary by telephone and asked what bad become of Mr. Costello's application for insurance, and tbe latter answered that “be sent tbe policy last night.” Mr. Higgins inquired, “From what date is tbe policy in force ?” and tbe secretary answered “from tbe date of tbe application, J anuary 6th.” Higgins then informed the secretary that Costello bad bad a loss. Tbe minutes of tbe defendant company show that tbe president and secretary acted on this application on J anuary 10th, and these minutes show that tbe insurance was to commence January 12, 1905, and tbe testimony of tbe defendant’s secretary, Mr. Hatch, supports these minutes. Mr. Hatch testifiéd that be made no change in tbe application, but that when be received it it was written for insurance to- commence on tbe 12th of January. They took no insurance for less than three years, so they issued tbe policy for three years upon this application. He explains that some one telephoned in regard to it, and be told this person that tbe insurance was to commence tbe day it was dated to commence in tbe application. This testimony raised a square issue of fact with reference to tbe acceptance of this application to begin January 2, 1905, or January 12, 1905, and upon this tbe jury found against tbe defendant to the effect that tbe secretaiy and' president of tbe defendant accepted said application for insurance as it was written at tbe time it was received;'that is [366] to say, an application for insurance beginning January 2d. We see no reason for disturbing tbis finding. It concludes tbe defendant upon tbis branch of the controversy. Tbis left only the question whether the acceptance of this application by determining to issue thereon a policy of insurance for three years instead of one year constituted a completed contract. Upon this question the evidence is without dispute. The insured had no- knowledge that the insurance company had as a part of and a condition of its acceptance thereof added to his application a provision for a three years’ term of insurance, instead of the one year’s term applied fop, until long after the fire in question. The duration of the risk was a vital and important item of the contract. In Sheldon v. Hekla F. Ins. Co. 65 Wis. 436, 27 N. W. 315, the contract of insurance was claimed to have been entered into on November 17, 1884, the insured property was destroyed by fire on November 21st following, and the insurance agent had agreed with the assured upon the particulars of insurance. No insurance company was specially designated, and the agent represented two companies and waived the immediate payment of the premium. It was held that the contract was not closed or completed because the agent had not prior to the loss in any manner designated to the assured the defendant as a party for whom he contracted, and the acceptance was not of the offer made by the assured nor did it correspond to the conversation between the insurance agent and the insured, because the conversation contemplated insurance for three years at $3.75 premium, while by the terms of the acceptance the duration of the risk was only one year for $3.75 premium. In John. R. Davis L. Co. v. Scottish U. & N. Ins. Co. 94 Wis. 472, 69 N. W. 156, it is said: “If the application be made to an agent representing several companies, the particular company or companies to carry the risk must be designated, with the amount each is to carry, [367] and each, by its- agent or otherwise, must agree to take tbe risk; that is, must make answer to tbe application, accepting it, direct or otherwise, by verbal communication, or by posting such communication. Without all these elements there •can be no binding contract.” Strohn v. Hartford F. Ins. Co. 37 Wis. 625. In 16 Am. & Eng. Ency. of Law (2d ed.) 849, 850, 851, many cases are collected which support the statement there found in words following: “If the parties have not agreed on the subject of insurance, 'the limit and duration of the risk, the perils insured against, the amount to be paid in the event of a loss, the rate of premium, or upon any other element or term which may be peculiar to the particular contract, whatever may have been the negotiations or propositions passing between them, these have not reached the form and obligation of a subsisting contract.” In the case at bar there is no evidence that the defendant ¡accepted the application otherwise than for a period of three .years, and there is no evidence that the plaintiff received the policy or was informed of this material addition to his application or proposal or even knew the name of the company in which he claims to have been insured at any time prior to 'the fire loss in question. This would bring the plaintiff’s •claim within the. rules and decisions above quoted, which harmonize with the general rules of law relating to- contracts by offer and acceptance. Russell v. Falls Mfg. Co. 106 Wis. 329, 82 N. W. 134; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887, and cases cited. It follows that the judgment of the circuit court must he •reversed with directions to dismiss the complaint. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss 'the complaint.