McCartney v. State Insurance , 33 Mo. App. 652 ( 1889 )

Gill, J.

The determination of the controversy turns upon the extent of the powers of B. P. Wooldridge, as agent for the plaintiff McCartney, for if Wooldridge had the authority, as the agent of McCartney, to surrender and cancel the insurance policy, there is no question but that he did all that was required to effect such cancellation. The company requested a surrender and cancellation, the policy was marked cancelled and sent in to the company’s home office, and the company returned to Wooldridge the unearned premium. All this was done, too, more than a month before the loss occurred. We think, to say the least, that there was evidence at the trial of this cause tending to show authority in Mr. Wooldridge to accept notice of the cancellation of this policy and to receive for McCartney a return of the unearned premium.

If the evidence for the defendant is to be credited, then Wooldridge was the agent of McCartney with very general powers. The whole matter was left in his charge and subject to his management. Mrs. Wooldridge was loaning McCartney money on the property and she exacted for her security insurance on the house. McCartney, in answer to this request, clothed Mr. Wooldridge with full authority to keep up the insurance for the benefit of Mrs. W ooldridge. This was in February, 1884, two and a half years before the defendant’s policy was cancelled. The evidence tends to show that Mr. Wooldridge, in pursuance of this authority, did all that time attempt to keep the property, insured, and was successful except for a month’s time before the fire occurred. He first procured a policy in one company, and then, after carrying the risk awhile, they cancelled the same; a second policy in another company was then secured which also was in a few months cancelled, and then the risk was, in January, 1886, taken by the defendant company, and they in turn refused to carry it further, and in September, 1886, returned the unearned premium and cancelled the policy in suit. All this was done through the agency of Mr. Wooldridge. He in all cases received the unearned premium and the evidence tends to show accounted to his principal McCartney for the same by applying it on other and renewed insurance. During all this time Wooldridge had possession of these various policies and he seemed by every appearance an agent for the insured with the fullest powers. The original authority given in February, 1884, “to keep the house insured,” attended, as it was, by a continuous possession of the policies for two and a half years, during which time two other policies had been cancelled and the return premium used towards securing other insurance, all of which is now to some extent ratified by McCartney in suing the defendant on this policy which is the result, or outgrowth, of former cancellations, all tends very strongly to establish the agency contended for by appellant.

The following authorities cited by defendant’s counsel are in point: Reynolds v. Ins. Co., 36 Mich. 502, 506-507 ; Standard Oil Co. v. Ins. Co., 64 N. Y. 85 ; Story on Agency, secs. 127 and 58, 452. The case of Rothschild v. Ins. Co., 74 Mo. 41, is not in conflict with these cases, nor of the position taken here. It was there decided that a policy of insurance could Dot be cancelled except by virtue of a power reserved in the policy or by agreement of the parties ; and further, that such agreement to cancel would not be binding on the policy-holder when made with the agent who by employment had simply procured the insurance and delivered the policy to the insured. • In the Rothschild case, the insured had secured certain definite policies through the agent. The agent had procured the policies and delivered them to the insured and that was the end of his engagement. Subsequently, the insurance company attempted to cancel the policy by giving notice thereof to this former agent of the insured. It was held that there was no authority shown in the agent to accept such notice of cancellation. There was no such general authority vested in the agent in that case as -in the case at bar. The agent mentioned in the Rothschild case was simply engaged to do a particular act and his agency there closed.

We think, then, that there was evidence here tending to establish the authority of Wooldridge, as agent for McCartney, to surrender up and accept a cancellation of the policy sued on, and therefore .that the circuit court committed error in declaring to the jury that there was no evidence to show a legal cancellation of the policy.

The judgment of the circuit court is therefore reversed and the cause remanded.

All concur.