British America Assurance Co. v. Cooper , 26 Colo. 452 ( 1899 )

Mr. Justice Gabbert

delivered the opinion of the court.

From the errors assigned and argued by counsel for plaintiff in error, the disposition of this cause depends upon the answer to these propositions:

Were the agents who, on behalf of the company, issued the policy, also the agents of the assured for the purpose of effecting this insurance ?

Was the evidence of the assured with respect to his conversation with these agents about insuring the property in companies which they might subsequently represent, prior to the time they represented the company incompetent ?

Was the notice of the company to its agents who issued this policy, to cancel it, notice to the assured ?

It is contended by counsel for plaintiff in error, that if either should be answered in the affirmative, the court erred in peremptorily instructing the jury to return a verdict in favor of the assured, but we unhesitatingly answer each of them in the negative. The authority of these agents, with respect to this transaction, in so far as they represented the assured, Was limited to supervising the construction of the building, leasing it, and collecting the rents. True, the assured does state, in speaking of their authority, that they were his agents for the purpose of procuring insurance and collecting rents, and if this were all the evidence on the subject, perhaps it might be successfully contended that they were also his agents for the purpose of effecting insurance; but the facts regarding this transaction must he limited to those bearing directly upon it. When he instructed them to procure insurance, and was informed that within a short time they expected to represent insurance companies in which they requested the privilege of writing it, and were advised that this would be satisfactory (and regarding this there is no controversy), such an arrangement was nothing more or less than a request upon the part of the owner of the building to the company, which subsequently insured it through these agents, to issue a policy of insurance, and when the latter acted on this suggestion, they did so as the representatives of the company issuing the policy. This did not constitute them dual agents for the purpose of procuring insurance. As agents to lease the building and collect rents, no duty was imposed upon them inconsistent with, or in conflict with that which they owed plaintiff in error with respect to the insurance under the circumstances narrated. The evidence of the assured relative to the arrangement between himself and the agents regarding the insurance of this property was competent for the purpose of showing for whom they acted in effecting it. In procuring this insurance they had not acted as brokers for the assured, but as the agents of the company, and when it notified them to cancel the policy, it was their duty to notify the assured, for the obvious reason that with respect to this insurance they were not his agents; had no authority or control over it, and therefore, notice to them was not notice to the assured. The latter had no notice of the cancellation until after the loss. The fact that the policy had not been delivered to him by the agents of the company, but remained in their possession, did not vest them with any authority over it, or make them his agents in so far as the insurance was concerned. It is also urged by counsel for plaintiff in error that assured is estopped from now claiming that the agents of the company were not also his agents, for the purpose of receiving notice of the cancellation. The answer to this suggestion is, that respecting this insurance they were not his agents. There is nothing in the record to indicate that it was in any manner misled by any relation between its representatives and the assured. On the contrary, they knew nothing of this relation, and in directing them to cancel the policy, it did not pretend that thereby it was notifying the assured, but simply directing its agents to do a specific act in its behalf, which they failed to perform, but which they advised their principal they would. There is nothing in the'record invoking the doctrine of estoppel.

Under the undisputed facts, the policy was in full force and effect when the loss occurred, and the trial court was clearly right, in directing the jury to return a verdict for the defendant in error. Its judgment is affirmed.

Affirmed.