Hartford Fire Insurance v. King , 106 Ala. 519 ( 1894 )

MoCLELLAN, J.

— We think the evidence in the record before us presents this case : Blair was the agent of the Hartford Fire Insurance Company at Gadsden, with power to accept propositions for insurance in said company, to receive premiums, bo make contracts of insurance and to issue policies without referring such applications to the company itself, though perhaps policies issued by him were subject to a right of cancellation in the company. King proposed to Blair to insure a certain house in the Hartford Co. for one year from September 12th, 1891, for six hundred dollars at a premium of three and one-quarter per cent. This application was made on September 11th, 1891, in writing on a form of the company furnished King by Blair. Upon receipt of it, Blair said that, because King’s application showed that there was a lien on the house (and lot) for a balance of purchase money, he could not issue a policy without first having the company’s consent, and he advised King that he had forwarded the application to the company, with a letter in which he informed the company that he would wait ‘ ‘to hear from them before issuing tlie policy.” King’s application and Blair’s letter reached the company on September 19th, 1891, and on the same day the company wrote Blair, acknowledging the receipt of King’s application and his letter and stating further : “We will allow you to write the desired amount on [King’s] building.” Blair on receipt of this letter, wrote out, signed and mailed to King on September 22d, 1891, a policy of insurance on the property and terms specified in King’s application, except that it was made to cover a period of one .year, commencing on the day of its date, September 22d, instead of September 12th, as proposed in the application. Meantime, without Blair’s knowledge, the property insured was, on the morning of September 21st, 1891, destroyed by fire. On these facts King brings this action to recover six hundred dollars, not on the policy of insurance, but upon a contract of insurance or to insure, which he insists was consummated on September 19th, and of which it was intended by the company that the policy to be issued by Blair should be the evidence ; but it is further insisted that the policy issued by Blair did not truly evidence said contract in respect of the time at which the period covered by the contract should commence. And upon this theory, the city court, without jury, found for the plaintiff, and entered judgment accordingly.

The question thus presented is as to whether a contract of insurance or to insure wás consummated between the company and King by the action of the former on September 19th., evidenced by its letter to Blair. Counsel for appellant do not at all question the well established propositions that a contract of this sort may rest in parol, that its existence and efficacy do not depend upon the issuance of that usual muniment of such contracts called a policy of insurance, but that to such ends, “it is sufficient,” . as said by Judge Bradley, “if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount and the rate of the insurance is ascertained or understood, and the premium paid if demanded.” — Eames v. Home Ins. Co., 94 U. S. 621, 629. See also 1 Biddle on Insurance, §§ 140 et seq.-, Home Ins. Co. v. Adler, 71 Ala. 516.

But the contention of appellant is, that there was no mutual assent to any contract of insurance until the policy was in fact issued, and that the policy was the only contract. We can not concur in this view. Every term of the proposed contract was set forth in the application of King. He therein proposed to be insured. The property to'be covered was therein described with particularity. His proposition was for insurance of that property “for the term of one year from September 12th, 1891." The amount was definitely stated to be six hundred dollars. And the rate of insurance he proposed to pay was three and one-quarter per cent. All this was embodied in the proposition he made to the Hartford Company. It was with that company to accept or reject that proposition. This option Blair might have exercised for the company. Whether he for the company or the company itself exercised it, however, was of no moment to King. Blair chose to submit the matter for the direct action of the company. He forwarded King’s proposition to the company, and it at once elected to 'accept the proposition. It in effect said, we agree to insure this house for one year from September 12th, 1891, in the sum of six hundred dollars for the proposed compensation of 19 and 50-100 dollars ; and we will have the formal evidence of this contract drawn up and delivered to King. Every essential term of the contract was thus agreed upon — the minds of the'parties had met in mutual assent upon every feature of a valid undertaking to insure. Had the time when the risks was to commence not been specified it would be referable to the date of the application, the 11th of September 1891. For, as said by Judge Bradley in the case cited above, in which the inception of the risk was not specified in the application : “There is no difficulty as to the time when the risk was to commence. It was the practice of the defendant, as it was of most if not all other companies, to antedate the policy to the time of making the application. * * * This practice is more beneficial to the companies than to the insured. They are not liable until the contract is completed, and if a loss occurs before its completion [i. e. the acceptance of the insured’s application] they have nothing to pay ; and yet they get the benefit of the premium for this period whenever the contract is completed." Nor is there any difficulty as to the stipulations of the policy to be subsequently written up and delivered. It will be presumed that the parties contemplate such form of policy, containing such conditions and limitations, as are usual in such cases.— Eames v. Home Ins. Co., supra. It is believed that in principle and upon authority there can be no doubt that a valid contract of insurance was fully consummated between the plaintiff and the defendant on September 19th, 1891, and was of force on the 21st of September, when the property was destroyed by fire. — Van Loan v. Farmers Mutual Fire Ins. Co., 90 N. Y. 280; Lingenfelter v. Phoenix Ins. Co., 19 Mo. App. 252 ; Kelley v. Commonwealth Ins. Co., 10 Bosw. 82 ; Hallock v. Commercial Ins. Co., 2 Dutcher (N. J.) 268, s. c. 3 Dutcher (N. J.) 645 ; Davenport v. Peoria M. & F. Ins. Co., 17 Iowa, 276; Long v. N. B. & M. Ins. Co., 137 Pa. St. 335, s. c. 21 Am. St. Rep. 879, and notes, 883; Eames v. Home Ins. Co., 94 U. S. 621, supra.

We do not think the complaint open to the objections taken to it by the demurrer. The daces which are left blank in the complaint appeared from papers in the possession of the defendant, and this would excuse their omission from the complaint where, as here, the complaint otherwise sufficiently shows that the contract sued on covered the time of the loss, the averment being that the contract was made on some day in September, 1891, prior to September 21st, for a period of one year, and that the fire occurred on said 21st day of September, 1891.

The judgment of the city court is affirmed.