
    CHARLESTON.
    George Hallauer et al. v. Fire Association of Philadelphia.
    Submitted February 4, 1919.
    Decided February 18, 1919.
    1. Insurance — Fire Insurance — Commencement of Bislc.
    
    Unless the application so provides, it is not necessary that a, policy of fire insurance be issued before protection becomes effective. Insurance commences, as a general rule, at the date on which the contract to insure is consummated by the acquiescence of. the parties, whether that is the date of the issuance of the policy or earlier, (p. 404).
    2. Same — Fire Insurance — Contract—Application and Acceptance.
    A contract of insurance, like any other contract, consists generally of two prerequisites, an offer or application and its acceptance, (p. 404).
    3. Same — Fire Insurance — Limited Acceptance — “Binding Slip.’’
    
    Where the insurance is to become effective or the risk attach before the application has been formally accepted by the insurer, frequently a limited acceptance or “binding slip” is given stating such fact. (p. 404).
    4. Customs and Usages — Fire Insurance — Liability.
    But where the testimony offered in the case shows the existence of a custom among insurance agents and companies that, in cases of applications for fire insurance, where the agent agrees to try to write the policy, all the terms having been agreed upon, the insurance is regarded as in force from the date bf the application, subject to cancellation by the company, and where the acts of the agent are such as reasonably tend to indicate his intention, to regard the policy as in force, and the jury finds from the evidence that such was his intention, the insurer is bound to compén-sate for the loss of the property incurred prior to notice of cancellation, (p. 405).
    5. Contracts — Interpretation—Agreement—Question for Jury.
    
    Though the interpretation of contracts when made and free from ambiguity is a question for the court, the determination of whether the facts proved or admitted are such as constitute an agreement binding the parties generally is within the province of the jury to ascertain from facts submitted for their consideration and judgment, (p. 406).
    
      6. ' Trial — Verdict—Interest—■Pleading.
    Though, a jury cannot in an action on a contract allow damages beyond the amount laid in the declaration, yet it may add to that sum interest, though the aggregate exceed the amount demanded by the pleading; and where the excess can rightfully be attributed to interest, the verdict is good. (p. 408).
    '7. Appeal and Error — Trial Verdict — Interest—Amendment After Verdict.
    
    Where a jury awards as damages in an action on a contract a sum slightly in excess of that demanded by the declaration, the excess being explainable as interest to cover the time between the dates of the accrual of the cause of action and the trial of the ■case, an amendment of the declaration after verdict increasing the amount demanded to a sum sufficient to cover the verdict is not prejudicial to defendant, because unnecessary, the verdict being proper if no amendment .had been permitted, (p. 408).
    Error to Circuit Court, Berkeley County.
    Assumpsit by George Hallauer and others against the Fire Association of Philadelphia. Judgment for plaintiffs, •and defendant brings error.
    
      Affirmed.
    
    
      H. H. Emmerl, for plaintiff in error.
    
      Allen B. Noll and Decatur H. Rodgers, for defendants in •error.
   •Lynch, Judge :

Plaintiffs brought assumpsit to recover the amount of an insurance policy issued, they allege, by the defendant November 2, 3915, to indemnify them against loss that might result, and three days later did result, from the destruction Iby fire of the property insured, and obtained the judgment 'to which defendant prosecutes this writ. The chief defense interposed in the trial court and relied on here rests solely upon the ground that the contract pleaded and offered in •evidence never was and is not now such a contract as re•quired defendant to render compensation for the property •destroyed.

The facts proved gnd admitted or controverted and constituting the. grounds of recovery and of the defense interposed are these: Plaintiffs owned and operated a fruit evaporating plant, the property insured and destroyed. Trammell & Company, themselves solicitors of insurance contracts for companies represented by them, theretofore had written policies of insurance for their companies covering the same property, but which they were directed to cancel after reporting to the companies respecting the writing of the policies, presumably because of the apparent hazard incident to property devoted to such use. Acting on behalf and at the request of plaintiffs, Trammell & Company then applied to H. L. Alexander, also an insurance solicitor in the same city, Martinsburg, on November 2, 3915, to write a policy covering the same property, and to the request he replied that he would try to write or place it. He did write, date and countersign the policy sued on as of the date of the application so as to make it a complete and binding contract of insurance, except as to delivery and revenue stamps, and directed a clerk temporarily employed in his office to inclose it and an account against Trammell & Company or plaintiffs for the usual premium in an’ envelope properly noted for delivery^ and told her not to deliver it without his consent. The fire occurred three days later, and without communicating to Alexander or to any employe of his then in his office the information that the property was at that moment being burned, Trammell & Company acting for plaintiffs procured possession' of the policy from a clerk in Alexander's office, other than the temporary clerk, who was not advised of the direction previously given, but later Alexander, having knowledge of the delivery and of the fire, authorized Trammell & Company, plaintiffs’ witnesses say, and he does not deny it, to cause revenue stamps to be affixed to the policy and canceled by his initials “H. L. A.,” which was done according to his directions. Alexander, on the other hand, affirmed his intention to have been not to do anything respecting a contract binding the defendant until it had consented to be bound, and stated further that as soon as he heard of the fire he went to the office of Tram-mell & Company and demanded of their clerk, the principals being out, the return of the policy. The clerk, however, fatly denied that any such demand was made upon him, and. tbe principals, Trammell and Nadenbouseh, state that no such demand was made upon them personally or through their office.

A contract for insurance, like any other contract, consists generally of two prerequisites, an offer or application and its acceptance. Unless the application so provides, it is not necessary that the policy be issued before protection becomes effective. Insurance commences, as a general rule, at the date of the policy or at the date on which the contract to insure is consummated by the acquiescence of the parties, even though in the form of a parol contract. Insurance Co. v. Insurance Co., 19 How. 318; Croft v. Hanover Fire Ins. Co., 40 W. Va. 508. To become a binding contract, however, the party to whom the offer or application is made generally must signify his acceptance, so that in the absence of some provision to the contrary there must be an actual assent to the assumption of the proposed risk, or some act done implying assent from which the insurer cannot recede without liability. 1 Joyce on Insurance (2d Ed.) § 55.. When the proposal or application has been accepted by the company itself or by an authorized agent acting for and on its behalf, the act of the agent being the act of the principal. from that moment the contract becomes effective and enforceable. But to constitute such a contract it is not always necessary that acceptance of the risk and the manual delivery of the contract be concurrent or contemporaneous.

Besides, the acceptance may be for a limited period of timeNwith the right reserved to reject, as in a case where a fire insurance company, having received an application for a policy, contracted to accept the risk for the term of thirty days from date, "unless the applicant is sooner notified of its rejection.” Barr v. North American Ins. Co., 61 Ind. 488. And this limited acceptance often takes the form of what is known as a "binding receipt” or "binding slip” given by an authorized agent pending the ascertainment of the company’s willingness to assume the burden of the proposed risk. 1 Joyce on Insurance (2d Ed.) §§ 64, 65. The effect of such a receipt generally is to protect one seeking insurance until the company acts upon the application, and if it elects to exercise tbe right reserved to decline to accept that burden, the binding effect of the slip ceases eo instante. See also Tucker v. Mutual Fire Ass’n., 71 W. Va. 690.

Thus it is seen, where the insurance is to become effective or the risk attach before the application has formally been accepted by the insurer, frequently a limited acceptance or binding receipt is given stating such fact. In this case Alexander, agent of the defendant company, in stating that he would try to write the policy, used language which from its general tenor, and in the absence of modifying circumstances, might give the impression that it was his intention to communicate with some one or more of the companies represented by him before the conclusion of 'the insurance contract and the issuance of the policy. There was no agreement for a limited acceptance or binding receipt given. The only case similar to this which a careful investigation has disclosed, though it differs materially on its facts, is that of Whitman v. Milwaukee Fire Ins. Co., 128 Wis. 124, in which the agent, replying to the applicant, told the latter that he “would see to it, take care of it so it would be all right;” would “get a policy.” The court said: “Evidence that the circumstances characterizing an application were closed by a mere promise on the part of the agent to attend to the matter of obtaining a policy of insurance, is proof that no contract of insurance was supposed to be closed in praesenti.” And the court further said that to establish that something out of the ordinary was contemplated, namely, the actual closing of a contract precedent to the issuance of a policy, reasonably clear evidence is required to show that the minds of the parties met on the precise proposition.

But it is contended by the plaintiff that the testimony offered in the case shows the existence of a’custom among insurance agents and companies that in cases of application for ■ fire insurance, where the agent agrees to write or place the risk, all the terms having been agreed upon, the policy is regarded as in force subject to the rejection of the application by the company, and from that custom and the circumstances appearing in the case it is urged that the insurance became effective from the date of the application, though there was no express understanding to that effect and no binding receipt given.

The circumstances upon which plaintiffs rely to show that defendant’s agent, Alexander, was acting in accordance with the custom proved at the trial are: That he had the policy written at. once on the day the request for insurance was made and dated as of that day; that he countersigned the policy knowing that it provided that “this policy shall not be valid unless countersigned by the duly authorized agent of the company at Martinsburg, West Virginia;” that he entered the policy name, number and premium charge in his company book as of that date, that being the book in which it was his custom to keep the accounts of the different companies which he represented, and in -which he entered “each policy as it is written to keep the number of the policy, the company and date;” that the premium on the policy if collected would have run from the date of the policy, i.e., the date of the application; that the policy was delivered to the plaintiffs ’ representative by the agent’s clerk; that the agent, or his clerk at Ms direction, after knowledge of the delivery of the policy and of the fire, called Trammell & Company over the ’phone and authorized them to place ,on the policy the revenue stamps omitted by the former, and deduct their cost from the premium, a fact not denied by the agent when on the stand; that Trammell & Company, who had -written two policies on tins risk, both of wMch were directed to be canceled by the companies when informed that they had been written, regarded its policies. as having been in force until they were canceled . The only testimony to the contrary was that by Alexander, who insisted that he did not intend to bind defendant until it had a fair opportunity to express a willingness to cany the- risk, and who stated that as soon as he heard of the fire he went to the office of Trammell & Company and demanded of their clerk, the principals being out, the return of the policy, a statement flatly denied by the clerk and by the principals.

Not what he declared after the fire as to Ms intentions at the time of the application for the policy, but what he admits or the proof shows he actually did before and after the fire controls.' The sufficiency oí these acts and whether they were proved were submitted to the determination of the jury. Though the interpretation of contracts when made and free from ambiguity is a question for the court, the determination of whether the facts proved or admitted are such as constitute an agreement binding the parties generally is within the province of a jury to ascertain from the facts submitted for their consideration and judgment. Bowyer v. Knapp,. 15 W. Va. 277; Strause v. Richmond, etc. Co., 109 Va. 724; Art Syndicate v. German Ins. Co., 213 Pa. 506; Manson v. Metropolitan Surety Co., 112 N. Y. Supp. 886.

This question was adequately presented to the jury by defendant’s instruction No. 3, which, as modified by the-court, is: “The court instructs the jury that before they can find a verdict for the plaintiff, they must believe from the evidence that II. L. Alexander, the agent of the defendant, at the time of the application for the insurance covered: by the policy in the suit, * * * intended to issue a policy in. one of the insurance companies represented by him which would be effective until canceled by the company whose policy should be so issued.” This instruction presented! squarely to the jury the question of Alexander’s intention..' Assuming that intention to have existed, as the jury -apparently found it so to exist, they were justified further from the evidence in finding that he, as general agent, had ample authority to bind his companies until they approved or canceled the policy. Brown v. Franklin Mutual Fire Insurance Co., 165 Mass. 565. There is in the record no question or doubt raised by pleading or proof as to the authority of Alexander in the capacity of and as possessing all the powers of an agent to countersign and issue contracts binding defendant, or that for such purpose defendant furnished him with blank policies of insurance duly executed except as to dates, blanks and his counter-signature, and these defendant empowered him to complete and issue as and ivhen necessary fully to consummate a binding contract whein delivered.

The complaint founded upon instructions is the refusal to-give defendant’s instruction No. 5 as requested, and its. modification by eliminating the phrase, “the defendant is not bound by local technical terms.” Before modification it read: “The court instructs the jury that (the defendant is not bound by local technical terms, and) unless the expression, ‘I will try to write the policy/ is a general technical term known and used bj^ the insurance companies generally, then the jury must give the said phrase its usual construction.” Striking out the phrase does not make a material alteration or change in tbe purpose of the instruction, because if the so-called technical phrase is not general it is necessarily comparatively local, and the latter sense or meaning is certainly implied in the language used, and the implication has a force equivalent to that in the instruction as propounded by defendant; at least the similarity is so apparent between the two forms as not to warrant a reversal of the judgment.

The last assignment to be considered is the leave asked and granted to amend and the amendment of the declaration after the jury had rendered the verdict and defendant had moved the award of a new trial by striking out $1,000 and inserting in lieu thereof $1,500 to correspond with the praecipe and process, the foraier. sum being that called for in the policy, in consonance with which the jury found, except that they apparently added interest to cover the time between the dates of the accrual of the cause of action and the trial of the case, the verdict being for $1,054.33. Obviously defendant’s rights were not .impaired by the amendment of the ad damnum clause of the declaration to correspond with the damages specified in the summons, for no amendment- of the declaration was in fact necessary. While it is true that tbe jury cannot in an action on a contract allow damages beyond the amount laid in the declaration, yet it may add to that sum interest, though the aggre-’ gate exceed the amount demanded by the pleading; and where the excess can rightfully be attributed to interest, the verdict is good. Section 14, ch. 131, Code; Salem Terminal Traction Co. v. McGraw, 66 W. Va. 321; Georgia Home Ins. Co. v. Good, 95 Va. 751. Since the verdict would thus have been proper if no amendment of the declaration had been permitted, the amendment therefore was not prejudicial to defendant.

Judgment affirmed.

Affimed.  