Sun Ins. Office of London v. Mitchell , 186 Ala. 420 ( 1914 )

SOMERVILLE, J. —

Both counts of the complaint are in code form, and are not subject to the grounds of demurrer assigned.

The certificate of the secretary of state was-properly admitted in evidence. Prima facie it established the general agency of Myers for the defendant company, and authorized him to transact the business of fire insurance for the company in the state of Alabama.

An agent who is authorized to solicit and receive applications for fire insurance, and, at his discretion, to countersign and issue policies of insurance intrusted to him by the company for that purpose, must be regarded quoad hoc as the general agent of the company.—19 Cyc. 780, B, b, and cases cited; Id. 592, 593; 22 Cyc. 1429, 4; Continental Fire Ins. Co. v. Brooks, 131 Ala. 614, 30 South. 876; Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 South. 46; Ins. Co. of N. Amer. v. Thornton, 130 Ala. 222, 30 South. 614, 55 L. R. A. 547, 89 Am. St. Rep. 30.

Myers was so authorized, and, although his general authority could be limited by the company to whatever extent deemed expedient, and such limitations would be binding as between principal and agent, and as to all third persons who had notice thereof, nevertheless it is well settled that, as to- uninformed third persons, a general agent’s authority must be determined by the nature of the business, and is prima facie coextensive with its requirements.—Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 South. 46; Com. Fire Ins. Co. v. Morris, 105 Ala. 498, 18 South. 34; Robinson v. Aetna Ins. Co., 128 Ala. 477, 30 South. 665. Restrictions upon the authority of a general agent with respect to the necessary or appropriate and usual incidents of the business intrusted to him cannot avail, and are not admissible in evidence against third persons who have relied upon his implied authority without notice of its limitations.-—Syndicate Ins. Co. v. Catchings, supra; Com. F. Ins. Co. v. Morris, supra; Robinson v. Aetna Ins. Co., supra; Security, etc., Co. v. Riley, 157 Ala. 553, 47 South. 735.

‘An agent duly authorized to hind his company by contracts for insurance may make valid contracts by parol or by a binding slip or memorandum, and a general authority to solicit insurance, receive premiums, and issue and deliver policies is sufficient to cover an executory contract to insure.”-—19 Cyc. 594, 595, D, 2, 3; N. Y. Life Ins. Co. v. Babcock, 69 Am. St. Rep. 145, 146, note.

Defendant’s insistence is that, however the alleged agreement between plaintiff and Myers might he regarded if the situs of the insured property had been in the city or Gadsden, yet his authority as a general agent was confined by his commission of employment to the city of Gadsden, and could not he exercised in the insurance of outlying property. This supposed territorial limitation as to the property which Myers was authorized to insure is found only in the language of his appointment “to act as agent to the said [Sun] office withm the limits of Gadsden.”

On the face of the commission the italicized phrase undoubtedly requires that Myers shall keep his office and transact the company’s business within the city of Gadsden; but it can hardly be said to exclude from his business of insurance all the insurable property in immediately outlying districts commercially tributary to Gadsden. Restrictions upon the authority of a general agent, other than territorial, are, as already stated, unavailable against third persons who are .not informed thereof. Contrary to what seems to be the generally recognized rule elsewhere (22 Cyc. 1431, b, and cases cited), this court has held that territorial restrictions upon even a general agent’s authority are effectual even as to uninformed third persons, so that the company is not bound by the agent’s acceptance of risks outside of his restricted territory.—Ins. Co. of N. America v. Thornton, 130 Ala. 222, 30 South. 614, 55 L. R. A. 547, 89 Am. St. Rep. 30. But in that case the agent’s commission expressly declared that “all policies shall be null and void and of no binding effect upon this company if issued upon property not situated within the district [Dothan and vicinity] in which the agent issuing the same shall reside and for which he is appointed.’’

We think that Myers’ commission ought to be liberally interpreted and construed in favor of, rather than in derogation of, his authority in the instant case; this in view of the fact that he is a general agent, and that the jurisdiction of local offices is customarily extended in fact and in practice to the immediate neighborhood; its language being perfectly consistent with such authority.

Indeed, the company does not appear to deny Myers’ territorial jurisdiction, and the insistence seems to be only that he had instructions to personally examine outlying property and report applications for acceptance by the company before issuing policies. In our view of the law, however, these private restrictions are not available for the defeat of plaintiff’s rights under his contract of insurance, if there was such a contract.

It follows that there was no error in the exclusion of Myers’ testimony to the effect that it was the duty of an agent to make an inspection of premises lying outside of the city of Gadsden before writing insurance for the company.

We find nothing improper in the cross-examination of Myers, which was designed to show certain admissions made by him after the fire, which were not consistent with his general testimony in the case; and so also of plaintiff’s testimony to similar conversations with him. The objection to them did not point out the absence of a predicate, even if a predicate were necessary.

The trial court instructed the jury that these matters could be considered only upon the question of Myers’ credibility, and the fact that they might prejudice the main issue against defendant was not a ground for their exclusion.

.It is urged that, inasmuch as plaintiff testified that the insurance premium was at the rate of $4 and |4.25 a thousand on the stock and building, respectively, while Myers testified that the approximate rate suggested was on the hundred instead of the thousand, this shows the minds of the parties never met; and hence defendant was entitled to the general affirmative charge on that aspect of the case. This, however, was clearly a question for the jury to determine, since, if they believed plaintiff’s testimony, they might well have found in favor of the existence of an agreement containing all the elements necessary to constitute a complete oral contract of insurance presently in force.

To this conclusion it was not essential that the premium should have been paid in advance, in the absence of any stipulation therefor. It is inferable from the evidence that a regular written policy was to supersede the temporary verbal arrangement, and that payment of the premium was not intended nor expected until the issuance of a written policy. Myers had an implied authority to thus waive the present payment of the premium.—69 Am. St. Rep. 150, note.

The action of the trial court in giving and refusing various written charges was in accordance with the views, above stated.

So, also, we find, nothing improper in those portions of the oral charge to which exceptions were taken.

There being no error apparent in the record, the judgment will be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.