Chrisman-Sawyer Banking Co. v. Royal Insurance , 71 Mo. App. 328 ( 1897 )

GtIll, J.

This is an action on an insurance policy made to the Independence Wool Manufacturing Company, and by it assigned to the plaintiff after the property had been destroyed by fire. The sole question tried below was whether or not there was a contract of insurance. Plaintiff had a verdict and judgment in its favor and defendant appealed.

statement. This appeal is without merit. ' As already stated the case turns upon one- main question of fact, and that is, was there a contract or agreement j.q insure> The Wool Manufacturing Company was represented by an agent, who on February 17, 1896, went to the office of defendant’s agent at Independence, and, if the manufacturing company’s agent is to be believed, he entered into a positive binding contract with the defendant’s agent to insure the property belonging to the manufacturing company in the sum of $1,250 the policy to take effect at noon on said February 17, 1896, and to terminate at noon February 17, 1897; that defendant’s agent agreed to take the risk at a certain rate, and that he would write up the policy which it was understood should be called for shortly by the assured; the policy was written and was in the possession of the defendant’s said agent a few days thereafter (February 22, 1896) when the fire occurred. At that time, however, the agent of the insured called on the defendant’s agent, paid the premium and took the policy. The defendant’s agent gave a somewhat different statement of the matter. He, in effect, testified that while he agreed to write the insurance it was yet understood that the risk should be referred to the defendant’s home office for its rejection or approval — in other words that it was a conditional insurance; that he subsequently delivered the policy before he had heard from the defendant and then because threatened by the manufacturing company with a lawsuit, etc.

The evidence on defendant’s behalf also tended to prove that when the risk‘was reported by its agent - he was at once written to take up or cancel the policy. This communication, however, was not received by defendant’s agent until after he had delivered the policy.

■^e'inlürSScei “ructions!nverdict’ After the evidence was all in, the court by fair and proper instructions submitted the issue to the jury, who it seems gave credit to the testimony of the agent for the insured, and found that a contract was entered into as detailed by him, that the policy was delivered in pursuance thereof, and hence found for plaintiff. We have carefully examined these instructions and fail to discover any error. They clearly declared the law, imposing the burden of proof on the plaintiff where it properly belonged, telling the jury what was necessary to make a binding contract, etc., and we are therefore bound to affirm the judgment. It is so ordered.

All concur.