Etter v. St. Paul Fire & Marine Insurance , 54 Pa. Super. 187 ( 1913 )

Opinion by

Head, J.,

To enable the plaintiff to make out a prima facie case it was necessary his proof should tend to establish that at the time of his fire loss there existed a valid and binding contract of insurance with the defendant company. If the existence of such contract was proven by evidence, its validity would not be destroyed merely because it was made in parol. This is clearly pointed out in Benner v. Fire Association, 229 Pa. 75. After a review of a great number of authorities in many jurisdictions, Mr. Justice Moschzisker, speaking for the court, declares that the weight of authority supports the further conclusion that an executory contract of insurance in the future may be valid and binding. But it is equally clear that where a plaintiff is obliged to rely upon a contract of that character, his testimony must be sufficiently precise and definite to show that the minds of the parties had met on every essential element of such contract. “The testimony must make clear the subject-matter of insurance, the amount and elements of the risk, including its duration in point of tittle and extent in point of hazard assumed, the rate of premium, and generally all the circumstances which are peculiar to the contract and distinguish it from every other so that nothing remains to be done but to fill up the policy and deliver it, on the one hand, and pay the premium on the other.” The plaintiff in that case relied upon testimony not to be distinguished in any essential particular from that on which the present plaintiff rests his case.

Five years and some months before the happening of the fire in this case the plaintiff had secured a policy from the defendant company insuring certain personal property against loss by fire for a period of five years from its date. That policy had by its terms expired some months before the loss occurred. The plaintiff had no policy at the date of the fire and his proof showed no then subsisting contract of insurance made by a duly authorized agent. The most he could prove was that at the time he received the policy stated the agent of the defendant company told him that at the expiration thereof he would have the company renew the contract of insurance evidenced thereby. There is nothing in the evidence to show that the renewal contract which the agent promised to make should be for any stated length of time. No rate or amount of premium was agreed upon. It could not then be told whether the plaintiff, five years thereafter, would be in possession of the same personal property, nor could its value or conditions be ascertained so long in advance. It is not shown by any testimony that the agent ever did renew the insurance or create a new contract for his company, or that he ever told the plaintiff that he had done so, or that the property of the plaintiff was covered by insurance at a time after the expiration of the policy he had taken. The plaintiff himself shows by his own testimony that, in point of fact, the agent never had made a new contract of insurance, in parol or otherwise, and that he excused his failure to make good his promise by the fact that he had been sick and overlooked it. Had the plaintiff, at the expiration of his five-year policy, determined to insure in some other company, we can see no foundation whatever in the testimony before us to support the proposition, that the defendant could have tendered a policy and sued for and recovered some premium, on the theory that it had five years previously entered into a binding contract with the plaintiff for further insurance.

In this respect we think the case before us is practically on all fours with Benner v. Fire Association, supra, and we are but applying its principle in holding that the learned judge below was right in entering a compulsory nonsuit and thereafter refusing to take it off. “ In the present case the testimony to establish the alleged contract is too vague. Although it is repeated in several different forms upon the notes, we have stated it most strongly for the plaintiff. And yet what have we? A conversation between the plaintiff and the agent of the defendant company about renewing another insurance, in which the former said to the latter, 'Don’t forget the barn. Renew the barn as quick as that comes due,’ and received the reply, 'I will attend to it, you don’t need to worry.’ How can we say from this with any safety that the defendant company thereby agreed upon an insurance in any fixed amount for any fixed term either in the present or future. The very words used by the agent indicate an intent to attend to something in the future for the plaintiff, rather than a then present presumption of an obligation binding upon his company. The old policy on the barn was in the possession of the plaintiff, so he as well as Hoch (the agent) had means of information as to the date of its expiration. The whole surroundings negative the idea of a serious contract being made: the conversation consisted of a few words on the street; no money was passed, no memorandum was made, and no definite promise given on either side.”

In the present case the plaintiff testifies that when he took out his policy more than five years before the fire, he said to the agent, "Now, Mr. Etter, will you renew this policy when it falls due and keep the insurance alive? He said that he would.” At a later period, whilst the policy was still in force, but the end of the period covered by it was approaching, the plaintiff further says, “I called his attention to it and asked him whether he would renew it and he said that he would.”

In both cases the evidence disclosed no more than a naked promise by the agent that he would, at some future time, enter into a contract of insurance for his company. This is not the equivalent of a present contract of insurance to become effective at a fixed future date. The learned court below was therefore right in refusing to take off the nonsuit.

Judgment affirmed.