Syndicate Insurance v. Catchings , 104 Ala. 176 ( 1893 )

HARALSON, J.

The first and third assignments of error raise the same question ; first, on the admission of evidence, and, second, on a motion to exclude it, based on the same grounds of objection. Dean & Co., of Eufaula, were the agents of the company which issued this policy. The plaintiff knew them, and never had any communication with the home office, so far as appears, in procuring the policy. The company is foreign, having its corporate residence in Minneapolis, Minnesota. It transacted its business in this State, in Eufaula, through the agency of Dean & Co., and if it had other agencies in the State it was not shown. These agents accepted service of this summons and complaint, from which we are authorized to infer that they were the appointees of the foreign company, to accept such service, under section 1201 of the Code. They were certainly supplied with the blanks of the company, as appears from the application for and the policy issued under it, both of which are dated the same day — the 20th of November, 1891— the application being signed by the agents alone, and by the president and secretary with lithograph signatures, as appears from the original paper, attached by agreement to the record, and countersigned by the agent’s, L. Y. Dean & Co. No written authority or power of attorney under which these agents acted and represented the defendant was introduced by defendant, or otherwise shown on the trial, nor was there parol evidence, introduced by defendant, of the character and extent of the agency, further than the bill of exceptions states, that the defendant introduced evidence tending to show “ that said Dean & Co. was a firm of insurance solicitors composed of L. Y. Dean and E. M. Cargill, that they only had authority from defendant to solicit insurance, and countersign all policies issued through their agency, and to countersign the policy in this case,' when issued by the defendant, and that after the policy sued on was delivered to the plaintiff, they had no authority to adjust or settle in any manner any loss under the policy and had no authority to alter, change or waive any part of or condition in the policy, and had no authority whatever in the matter after the policy was delivered by them to plaintiff.” It was not shown that these instructions or limitations of authority were ever communicated, directly or indirectly, to plaintiff, or that she or her agent knew anything of them.

We have, then, evidence on the part of the plaintiff, tending to show that Dean & Co. were the general agents of the defendant,especially so far as appearances indicated, and on the part of the defendant, that they were special agents with special instructions, limiting their powers. Now, a special agent has no right, even as to third persons, to bind his principal, beyond the powers of his agency ; and those dealing with him, must, at their peril, ascertain the extent of his authority. — 3 Brick. Dig., *22 § 54, 1 Amer. & Eng. Encyc. of Law, 252. Out of the usual course of business, the assured must be sure the agent has express authority. His authority as to third persons, is governed by the nature of his business. Acts, waivers, representations, &c., in the usual course of business will, as has been repeatedly held, bind the principal in spite of private instructions, unless the other party had notice of them ; and the authority of an agent, as to those with whom he deals, is what it appears to be, and the question is, not what power the agent did have, but what the company held him out as haviug. As we said on this subject, in one of our cases, the principal, in the appointment of an agent, is regarded as saying to the public,'that he has the power to transact the business in the usual and customary modes, and !‘secret limitations on his power, or private instructions as to the mode of transacting the business, will not affect the right of third persons who have no notice of such limitations or instructions. When the general agent transacts the business intrusted to him, within the usual and ordinary scope of such business, he acts within the extent of his authority, and the principal is bound, provided the party dealing with the agent acts in good faith, and is not guilty of negligence which proximately contributes to the loss.” — Louisville Coffin Co. v. Stokes, 78 Ala. 372; Gibson v. Snow Hardware Co., 94 Ala. 346; The Montgomery Furniture Co.v. Hardaway, ante, p. 100; Piedmont & Arlington Ins. Co. v. Young, 58 Ala. 476 ; 1 May on Insurance, §§ 126, 144; 1 Am. & Eng. Encyc. of Law, 350, 353.

2. Of these two classes of agents — special and general — Mr. May observes, that‘‘a general agent in the strict legal sense, is one who has all the powers of his principal as to the business in which he is engaged — an extent of authority not often conferred in insurance. In that business, an agent is termed a general agent rather with reference to the geographical extent of his authority, in contradistinction to a local agent, who may have original powers, though exercising them within more restricted limits ; and a general agent may appoint local and sub-agents which a local agent can not. But there seems to be no very well defined distinction between the powers of general agents, local agents and sub-agents, and, therefore, they may become, in any case, a question of fact for the jury.” — 1 May on Ins., § 126. If the authority of the agent and its extent is not evidenced by a written instrument, but rests in parol and is a matter of disputed fact, then it becomes a question of fact for the jury and not of law for the court. — Foley v. Felrath, 98 Ala. 176; S. & N. Ala. R.R. Co. v. Henlein, 52 Ala. 610; Hough v. Ins. Co., 29 Conn. 11; Nicoll v. Ins. Co., 3 Wood & Min. C. C. Rep. 533 ; Keenan v. Ins. Co., 12 Iowa, 131.

3. We have referred to the facts tending to show the extent of the agents’ authority in this case, that they were general, and extended not only to the matter of contracting for insurance, but to attending to all other matters necessary and proper to be attended to in and about the particular insurance. To whom did plaintiff naturally turn, when her property was destroyed? To the company in Minneapolis, which she knew nothing of, except through these agents? or to the agents who represented the company in providing her the insurance? And to whom, in all the world, would the company itself, more naturally turn for information in respect to the loss, than to its agents in the neighborhood of the loss? and who so competent as they, to serve the company in receiving notice of, and having the loss properly and honestly adjusted? Would not this duty appear to the general public to lie naturally, within the legitimate and proper scope of the powers of these agents? Who, except some one learned in the law, or trained in insurance business and technicalities, would have acted differently from the plaintiff, in trusting these agents and relying’ on what they told her as to making proof of her loss? “Insurance policies are framed by companies with great care and caution, with a view of limiting their liability as much as possible ; and in most cases impose conditions and duties on the assured, to be performed with marked particularity. They should be, and are liberally construed in favor of the assured; which conditions are strictly construed against the insurer.”— Piedmont & Arlington Ins. Co. v. Young, 58 Ala. 487.

And again it has been said : ‘ ‘ The powers of the agent are prima facie co-extensive with the business entrusted, to his care, and will not be narrowed by limitations not communicated to the person with whom he deals. An insurance company establishing a local agency, must be held responsible to the parties with whom they transact business, for the acts and declarations of the agent within the scope of his employment, as if they proceeded from the principal.” — Insurance Co. v. Wilkinson, 13 Wal. 222, 234 ; Miller v. The M. B. L. Ins. Co., 31 Iowa 216, 226.

There was no error in admitting the evidence of the witness Harrison, and in refusing to exclude it. If Dean & Co. were the general agents of defendant, a question properly for the determination of the jury, under instructions, this was competent evidence of a waiver of the proof of loss. The objections to the evidence wrere specific, and not one was based on any alleged ground of irrelevancy, or that there was a variance in the proof offered and the allegations of the replication.

3. There was no error in admitting the evidence of Cooper, that at the time he made the application, he told the agent that the land was mortgaged to the loan company. Jordan, a clerk in the office of the agents, took down the answers of Cooper to the questions propounded, but it was done by the direction of one of the agents, who was present a part of the time the examination of Cooper was being conducted, and heard a part of it, while the other agent, Cargill, sat near by, within a few feet, all the while, but not engaged in examining Cooper. It was also shown that Jordan solicited policies, took applications and collected premiums on policies issued by the company. Whether or not, Dean, or his partner, heard and knew all that passed between Cooper and Jordan, was a question of fact for the jury, under instructions from the court. But, in addition to that, as it has been held, “Agents of insurance companies authorized to contract for risks, receive and collect premiums and deliver policies, may confer upon a clerk or subordinate authority to exercise the same powers. The service is not of such a personal character, as to come under the maxim, delegatus, non potest delegare.” — 1 M. ay on Ins., §§ 154,154 A ; Bodine v. Exchange Fire Co. ,51 N. Y. 117 ; Eclectic L. Ins. Co. v. Fahrenkrug, 68 Ill. 463 ; Continental L. Ins. Co. v. Goodall, 5 Bing. L. & Acc. Ins. Cases 422; Mayer v. Mut. L. Ins. Co., 38 Iowa, 304; Planters’ Ins. Co. v. Myers, 55 Miss. 479; Cooke v. Ætna Ins. Co., 7 Daly (N. Y.) 555.

May lays down the proposition, supported,by a vast array of authorities, sanctioned expressly by this court, that “It has been very generally held, that knowledge by, or notice to the agent, of the inaccuracy of a statement in the application upon which a policy is issued after such notice or knowledge, binds the company, and prevents them from availing themselves of the inaccuracy in defense ; some of the cases regarding the facts as amounting to- a waiver, and others as working an estoppel in pais. And this is true, even though the policy provides that when the application is made through an agent of the company, the applicant shall be responsible for such agents’ representatives.” — 1 May on Ins., §§ 143, 144, 144c.; Wood on Fire Ins., § 152; Western Ass. Co. v. Stoddard, 88 Ala. 611; Phoenix Ins. Co. v. Copeland, 90 Ala. 386; Com. Fire Ins. Co. v. Allen, 80 Ala. 571; Merchants Ins. Co. v. Thurston, 93 Ala. 256; Planters’ Ins. Co. v. Myers, 55 Miss. 480.

4. The court charged the jury at length, covering the different issues in the case, under the evidence offered, which charge covers more than two and one half pages of the transcript, and is divided into five sections. “The defendant then- and there severally and separately excepted to each and every section, and each and every paragraph of said charge as given.” We have quoted the language in which the exception was reserved. This was a mere general exception, and unavailing, unless the charge was erroneous in all of its propositions, which was not the case. — 3 Brick. Dig. 80, §§ 35, 36, 37 ; S. & N. A. R. R. Co. v. Jones, 56 Ala. 507 ; Mayberry v. Leach, 58 Ala. 339; Elliott v. Dycke, 78 Ala. 157; Richmond & Danville R. R. Co.v. Jones, 92 Ala. 225; Espalla v. Richard & Sons, 94 Ala. 159.

5. There was no error in refusing the 2d charge requested by defendant. The replication to the plea on which this charge is based, on which issue was joined, was that the fire occurred at night, when persons on the .premises near the gin-house were asleep, and that when the first person discovered the fire it was too late to save the building with the aid of the barrel of water, buckets or 'otherwise.; and there was evidence by the plaintiff, tending to establish the truth of the replication, which' the charge ignores.

The remaining charges, 3, 4, 5, and 6, each, ignore the facts relied on in the replications to the pleas of the defendant, on which issue was joined, and which there was evidence tending to establish. — Liberty Ins. Co. v. Boulden, 96 Ala. 508; Western Ass. Co. v. Stoddard, 88 Ala. 611; Piedmont & Arlington Ins. Co. v. Young, 58 Ala. 486; Queen Ins. Co. v. Young, 86 Ala. 431; P. & M. Ins. Co. v Thurston, 93 Ala. 257; Planters’ Ins. Co. v. Myers, 55 Miss. 479.

Affirmed.