Shepard v. Boone County Home Mutual Fire Insurance , 138 Mo. App. 20 ( 1909 )

ELLISON, J.

— This action is based on an oral contract of fire insurance. The trial court directed a verdict for the defendant.

It appears that defendant is a mutual company and that plaintiff was a member thereof and had been a holder of policies insuring different pieces of his property for several years. Some of these expired in October, 1906, but the one in controversy, covering his barn in the sum of $1000, did not expire until December 8, 1906. In September or October, shortly before the first ones expired, Smith, defendant’s agent called at plaintiff’s house but found that plaintiff was too sick to be seen, though he sent the agent word that he wanted a renewal of a policy covering some of his other property in the sum of $800. In the latter part of November the agent returned with this renewal policy which had been signed by the president and secretary of the company. The agent delivered the policy and at the same time took plaintiff’s written application therefor, collected $10 in cash and took his note for the balance of the premium. The agent told plaintiff that he had been protected during the time between the expiration of this $800 policy and the delivery of the renewal. At this time (latter part of November) plaintiff told the agent that he wanted a renewal of the $1,000 policy on the barn expiring December 8th and the agent thereupon wrote the word “renew” or “renewed” in a memorandum book in which he had the number of the policy. It was however agreed at the time that plaintiff would call at the agents’ office and attend to the renewal at the proper time. He never called and nearly a year thereafter the barn burned and defendant refused to recognize any contract of insurance. This, action followed.

We do not see any reason upon which the action can be sustained. We do not place our decision on the ground that no policy was issued for there may be valid oral contracts of insurance (Lingenfelter v. Insurance Co., 19 Mo. App. 283), but in this case an oral contract was not only not shown, but the evidence shows affirmatively that none was made. Plaintiff testified that “I told him that I expected to be out soon and that I would call in the office and attend to it.” “That I was getting better and expected to sign it as soon as I got able to come down town.” Further, he said that “it was understood that I should do it, that I would attend to it, by him calling at my office, or me calling there, and I forgot it and he did.” Nothing was ever said or done afterwards; no application was made and no premium paid or promised; and, as already stated, nearly a year after the expiration of the policy the barn burned.

It was shown that the board of directors of the defendant company did not act on applications for insurance except at regular meetings to approve the policies Avhich the president and secretary had issued since their last meeting. It was further shown that policy holders would order renewals of policies from Smith and then in a short time call at his office, sign an application and take out a policy as of the date of the expiration of the former. But this does not aid the plaintiff. The only definite thing appearing in this case is an understanding that plaintiff would call “shortly” at the agent’s office, make his application, arrange as to the premium and take out a policy. This he never did because he “forgot it.” The effect of plaintiff’s position is that, for the reason that he forgot to make the contract he contemplated making, therefore some other totally different contract resulted.

Plaintiff’s supplemental brief does not help the case. Among other things it assumes an oral contract of insurance was made. This.was denied by the first paragraph of the answer and the denial is sustained by the evidence of plaintiff himself.

The judgment is affirmed.

All concur.