Kruger v. Western Fire & Marine Insurance

Foote, C. This was an action to recover upon two' policies of insurance. The cause was tried before a jury, who brought in a verdict in favor of the plaintiffs, upon which a judgment was rendered against the defendant for fifteen hundred dollars, costs, etc.

From that judgment an appeal is prosecuted.

From that record it appears that in the year 1881 Grant Lapham, the agent of the defendant in the county of Alameda, where the plaintiffs kept their stock of goods, was at the place of business of the plaintiffs, and [92]examined said stock, and that on the thirty-first day of August, 1881, after such examination, the defendant issued a policy of insurance upon the stock of goods thus examined by its agent.

The testimony of one of the plaintiffs with reference to the transaction was as follows:—

“Yes, sir; I did have a conversation with him [meaning Lapham].

“ First, you know, we insured with another man. The agent came round and insured us. That was right before the Fourth of July. He did not bring around the policy; he kept the policy. During the Fourth we did not have any policy at all. Right after the Fourth he brought it around. I said: ‘ You just bring' it around now. There is no danger now.’ That was before ‘the danger is over now/ I says. ‘You can keep it now.’ He left it in the store; left it there over a week.. I told him I would not accept it. Then during the week I read over the policy what he left there. It mentioned something about the coal-oil. During that time Mr. Grant Lapham came around, and said he wanted to insure us. I told him about this. He was a friend of mine. I told him about this that was in the policy. ‘ What is the use of insuring? We cannot get nothing if we burn out. Because it says there mentions about the coal-oil.’ ‘ He says such a small amount as you keep, that won’t be any matter. You don’t keep any large amount.’ I told him, All right; go on and insure us. Then he brought around the policy; so it was all right. We kept it.”

It was further proved that upon the expiration of the policy thus issued in August, 1881, and at the expiration of each year thereafter, down to and including the issuance of the policies in suit, new policies in the same company upon the same description of goods were issued by defendant to plaintiffs.

Ho further conversations with any agent of the de