John R. Davis Lumber Co. v. Scottish Union & National Insurance , 94 Wis. 472 ( 1896 )

Maeshall, J.

A binding verbal contract of insurance may be made without the payment of any premium, or even the making of any report, to the insurance company. That has been repeatedly decided by this court. Zell v. Herman F. M. Ins. Co. 75 Wis. 521; Campbell v. Am. F. Ins. Co. 73 Wis. 100. But, to make such a contract, there must be a meeting of minds between the parties thereto, so as to leave nothing to be done thereafter but to execute it as made. There must be an application, though not necessarily in writing. The terms and property must be specified. 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, and each, by its agent or otherwise, must agree to take the risk, that is, must make answer to the application, accepting it, direct or otherwise, by verbal communication, or by posting such communication. Without all these elements there can be no binding contract. Sheldon v. Hekla F. Ins. Co. 65 Wis. 436; Rossiter v. Ætna L. Ins. Co. 91 Wis. 121. When the application is made it is subject to withdrawal till answered in one of the ways indicated, or something equivalent, and till so answered it cannot be said that the minds of the parties have met. 1 Wood, Fire Ins. §§ 18, 20, 21, and cases cited.

The mere statement of the essentials of such a contract is sufficient to decide this case. Here, though there was an ■application for insurance upon specified property at specified rates, the companies and distribution between them were not agreed upon, and there was neither an acceptance of the application by either, nor an agreement to accept. It was contemplated that the agent to whom the application was made should seasonably investigate and report whether the companies would carry the risk or not. He made such-report in their behalf by declining the application. There is a large amount of evidence in the case showing what occurred between the agent and an office called the compact office, at Oshkosh, through which, for certain purposes, insurance written in the vicinity of Oshkosh by certain companies, including defendants, was customarily reported; but very little of it, if any, is really material to this controversy. The facts are that defendants, neither through Palmer nor otherwise, ever agreed to carry the insurance. The only communications that passed between the parties were, as stated: First, an application by West to Palmer on behalf of plaintiff, coupled with an agreement by the latter to report what could be done in the matter; and, second, a report declining such application.

The case is unlike Campbell v. Am. F. Ins. Co., supra, where the agent authorized to make contracts and issue policies binding on the company made an agreement, complete in every particular, but stated that the company might refuse to carry the risk after it was reported. Under such •circumstances this court held that the contract was binding until canceled and notice of the cancellation given to the ■insured. This is also unlike Eames v. Home Ins. Co. 94 U. S. 621, where there was an application to the agent for insurance at a specified rate, a reply thereto that the company would not take the risk at such rate, but would at a higher rate, specified, to which the applicant replied, accepting the company’s terms. That, obviously, made a contract. There was nothing whatever left to do but to execute it; hence, in the action against the company to compel specific performance by issuing the policy, plaintiff prevailed. King v. Hekla F. Ins. Co. 58 Wis. 508, and many other cases in this and other courts, to which reference might be made, are to the same effect.

The question, in such cases, whether a complete agreement exists, is frequently not free from difficulty; but the principles governing its solution are the same as in respect to other contracts. The burden of proof is on the party alleging its existence to show, by satisfactory evidence, that the negotiations were concluded, and contract in fact made, by which the .parties became mutually bound. An infallible test is to determine whether both parties are bound. Unless the assured is obligated to pay the premium on tender of the policy, the company is not to deliver it, or to pay the loss if one occurs. Here, up to the time Wést was notified by Palmer that defendants would not accept the risk, plaintiff or his agent could have withdrawn the application, and defendants would have had no claim against him. It follows, obviously, that plaintiff was not bound up to that time; hence, necessarily, defendants were not.

In all the cases where recovery has been sustained on a verbal contract of insurance, it will be found that the evidence either conclusively showed that there was a complete meeting of minds between the parties, or that there was evidence sufficient to warrant the court or jury in finding the existence of a complete contract. As we view this case, there is no evidence tending to show that the alleged contract was completed; hence, the motion to direct a verdict as to each defendant should have been granted. Failing to do that, the court should have set aside the verdicts and granted a new trial.

By the Cowrt.— Each of the judgments appealed from is reversed, and the causes remanded for a new trial.