(Cf. K.C. Working Chemical Co. v. Eureka Security etc. Ins. Co. (1947) 82 Cal.App.2d 120, 134-135 [ 185 P.2d 832]; Walters v. West American Ins. Co. (1935) 4 Cal.App.2d 581 [ 41 P.2d 355, 43 P.2d 306].)
In that light, it is clear that Cornish's consent to cancellation and Haugen's authority to cancel were granted on condition that a contract of insurance would be in existence at the moment the old coverage ceased. ( K.C. WorkingC. Co. v. Eureka-Security F. M. Ins. Co., 82 Cal.App.2d 120 [ 185 P.2d 832]; Poor v. Hudson Ins. Co., 2 F. 432; Holden v. Putnam F. Ins. Co., 46 N.Y. 1 [7 Am.Rep. 287]; Aetna Ins.Co. v. Rosenberg, 62 Ark. 507 [36 S.W. 908].) There was no new contract at the time of Spidle's death because there was no agreement about the extent of coverage.
Appellant concedes that oral contracts of insurance are enforceable. ( Smith v. Massachusetts Bonding Ins. Co., 71 Cal.App. 661 [ 236 P. 176]; K.C. Working C. Co. v. Eureka-Security F. M. Ins. Co., 82 Cal.App.2d 120 [ 185 P.2d 832].) The cases hold that in the absence of evidence to the contrary, the effective date of insurance is the date when acceptance is made.
Even if he had been successful in doing so, before any substitution could be affected, the plaintiff would have to consent thereto. K.C. Working Chemical Co. v. Eureka Security Fire & Marine Ins. Co., 82 Cal.App.2d 120, 185 P.2d 832-838; section 1550, Civ. Code of Cal. The two policies and the rider for the National policy were intended as a substitute for the existing National policy and until such intention was carried out by mutual consent of all parties, no liability was created under the proposed substituted policies or the substituted rider. Crawford v. Trans-Atlantic Fire Ins. Co., 125 Cal. 609, 58 P. 177; City of N.Y. Ins. Co. v. Jordan, 5 Cir., 284 F. 420; American Can Co. v. Agricultural Ins. Co., 12 Cal.App. 133, 106 P. 720; Law v. Northern Assur. Co., 165 Cal. 394, 132 P. 590; Sec. 381, insurance Code of Cal. Plaintiff ignores the rider to the National policy but seeks the benefits of the defendants' policies.
" ( Id. at p. 157.) As stated in K.C. Working C. Co. v. Eureka-Sec. Ins. Co. (1947) 82 Cal.App.2d 120, 131 [ 185 P.2d 832], "To constitute a valid contract of insurance the minds of the parties must have met on the identity of the person with whom they are dealing." Amex argues it insured, if anyone, the person who appeared for the medical examination, not Morales, and that to the extent the policy purported to insure Morales, it was void from the beginning or, to use the term in the cases, ab initio.
[Citations.]" ( K.C. Working C. Co. v. Eureka-Sec. Ins. Co. (1947) 82 Cal.App.2d 120, 131 [ 185 P.2d 832].) If there is no duty to furnish the insurance, the fact, if it be such, that Mrs. Neick and Hadfield conspired to prevent plaintiff from securing insurance with the defendant insurer did not render it liable. (9) "Where a complaint charges a conspiracy and the commission of a wrongful act, the only significance of the conspiracy charge is that each member may be held responsible as a joint tortfeasor, regardless of whether or not he directly participated in the act. [Citations.] A conspiracy, in and of itself, however atrocious, does not give rise to a cause of action unless a civil wrong has been committed resulting in damage.
[3] Respondent has pointed out: "To constitute a valid contract of insurance the minds of the parties must have met on the identity of the person with whom they are dealing." ( K.C. Working Chemical Co. v. Eureka-Security F.M. Ins. Co. (1947) 82 Cal.App.2d 120, 131 [ 185 P.2d 832].) [4] It is also axiomatic that the court cannot reform and remake a contract for alleged mistake where there was never any such common intent.
While such surrender or return of the unearned premium is not essential to the cancellation of a policy, it is nevertheless a piece of evidence tending to show that the respondent did not deem the policy to be cancelled, particularly in the light of the burden placed upon the respondent to prove cancellation. ( K.C. Working Chemical Co. v. Eureka-SecurityFire Marine Ins. Co., 82 Cal.App.2d 120, 130 [ 185 P.2d 832]; see Stevenson v. Sun Ins. Office, supra, 17 Cal.App. 280, 288.) Another circumstance which militates against such cancellation is the payment of the insurance on the personal property and the acceptance of that payment by Mrs. Brucato.
Nor is there anything in the policy, or the evidence, from which it may be inferred that there was any meeting of the minds upon any essential feature or element of such a contract urged by appellants. The evidence is wholly lacking in details essential to prove a contract. ( Ellis v. Klaff, 96 Cal.App.2d 471 [ 216 P.2d 15]; K.C. Working Chemical Co. v. Eureka-Sec. F M. Ins. Co., 82 Cal.App.2d 120 [ 185 P.2d 832].) No proof established definite or certain terms in the precise performance which would be required to perform undercarriage mechanical or other inspections, anything to show the scope or character of the inspection, the frequency of inspections, the manner in which they were to be made, et cetera.
In 15 American Law Reports, page 1026 and 75 American Law Reports, page 952, and cases cited thereunder, it appears that the weight of authority is to the effect that mere delay in passing on an application for insurance does not create a contract of insurance. ( Lucas v. Metropolitan Life Ins. Co., 14 Cal.App.2d 676 [ 58 P.2d 934]; K.C. Working C. Co. v. Eureka-Security etc. Ins. Co., 82 Cal.App.2d 120, 132 [ 185 P.2d 832]; 1 Cal.Jur. ยงยง 12, 13, pp. 319, et seq.) In Bradley v. Federal Life Ins. Co., 295 Ill. 381 [129 N.E. 171, 15 A.L.R. 1021], the court disposed of the case in holding that no right of action survived the death of the applicant, since it was admitted by the parties to the proceeding that no cause of action accrued to the applicant until his death, and neither he nor his estate sustained any injury until that time; that since the death was not caused by the negligence of the defendant and the action was for damages to his estate for failing to pass on his application, and since no cause of action accrued to the applicant in his lifetime, no cause of action survived to his administrator.