* Corpus Juris-Cyc. References: Fire Insurance, 26 C.J., p. 54, n. 2. The Newark Fire Insurance Company appeals from a judgment for one thousand dollars in favor of Frank Russell, on an alleged insurance policy upon a house owned by Mr. Russell, which was destroyed by fire.
The suit purports to be based upon an oral contract of insurance in which the insurance company insured the house of appellee for one thousand dollars for a term of five years. It appears that Russell applied to a Mr. Graham, a solicitor for the insurance company, for insurance upon his house, and made his application in writing, which was to be forwarded to the insurance company in Atlanta, Ga., and, that if the insurance company approved the application, the policy was to be issued and sent to Mr. Russell.
Russell testified that he paid the agent, Graham, twenty-five dollars and twenty cents in cash as the first premium and gave him his note for one hundred dollars and *Page 401 eighty cents to cover the balance of the premium for a five-year contract of one thousand dollars insurance upon his residence, which was afterwards destroyed by fire.
The written application for the insurance signed by Russell is in the record, and it provides that the insurance would be given Russell if the application was approved by the insurance company at the Atlanta office. The application also provides that any oral agreements between the agent and the applicant would be void, and that any false statement made by the applicant would vitiate the application.
The note and the application were forwarded to the Atlanta office, but Russell heard nothing from them until after the residence was destroyed by fire, some two months after the date of the application. The note and application were then returned to Russell marked "canceled" of date when they were first received by the Atlanta office, and the insurance company refused to pay the amount, one thousand dollars, claimed by Russell.
The appellee, Russell, alleges that his suit is based upon an oral contract of insurance; however, it will be observed that he relies upon the written application and the policy which he claims was to be issued, or was issued, but never delivered. But whether we treat the suit as one upon a written contract of insurance or an oral contract can make no difference, so far as the result of this case is concerned, because the conclusion we have reached will end the case in either event.
The appellant, insurance company, urges several grounds for reversal, but we shall notice but one, which will settle the lawsuit, and that is whether or not there was, in fact, a contract of insurance entered into between the parties.
The oral testimony offered by the appellee, Russell, and the written application signed by him, shows, without dispute, that the issuance of the insurance to him depended upon the approval of the application by the insurance company at the Atlanta office. We find there is no positive testimony in the record showing that the application *Page 402 was approved, nor that a policy was issued thereon. On the contrary, the evidence is conclusive that the application was never approved, but was canceled and returned to Russell; that his note was not accepted, but was canceled and returned. The writings show this, and Mr. Russell testified to the same when on the witness stand; therefore we do not think any contract of insurance was entered into between the parties, and that the lower court should have granted a peremptory instruction in favor of the insurance company as asked for.
Whether the suit ought to have been brought in the chancery court and the production of the policy required, if there was a policy, is a question that we are not concerned with in the present case, but we may say, in order to throw light upon our decision, that the insurance company objected to the oral testimony regarding the terms of the policy alleged to have been issued, but undelivered, because the policy was the best evidence, and the court overruled the objection; and this is one of the errors assigned on the appeal before us, but we do not pass upon the proposition because it is unnecessary to do so.
We do not question the validity of an oral contract of insurance, but such contract must be proven by the evidence, and, in the present case, we are unable to find any testimony in the record which shows that the insurance company approved the application for the insurance, which was a condition precedent to the issuance of the policy, or to a contract of insurance; nor was there any policy issued to the appellee, so far as the competent evidence in this case shows.
In view of these conclusions, the judgment of the lower court is reversed, and judgment entered here for appellant.
Reversed, and judgment entered here for appellant. *Page 403