Vardeman v. Penn Mutual Life Insurance , 125 Ga. 117 ( 1906 )

Cobb, P. J.

' (After stating the foregoing facts.) The contract of insurance contained the following stipulation: “No alteration of this contract or waiver of any of its conditions shall be valid unless made in writing and signed by an officer of the company.”' The plaintiff in this ease sought a reformation of the contract which would alter it materially and waive one of its conditions, upon the ground that the alteration and waiver were made by “the general agent of the company at Columbus.” In the case of Hutson v. Prudential Ins. Co., 122 Ga. 847, there was a stipulation that no provision or condition of the policy could be waived except by endorsement on the policy, sighed by’ the president, one of the vice-presidents, the secretary, the assistant secretar}-, or the actuary; and it was held that a general agent was without authority to waive any condition in the policy, and that “no person save the designated officers of the company would have such authority.” In the present case the person authorized to make the waiver is designated by the general term “officer,” and the question is whéther a general agent is an officer.

One distinction between officers and agents of a corporation lies in the manner of their creation. An office is created by the charter of the corporation, and the officer is elected by the directors or the stockholders. An agency is usually created by the officers, or one or more of them, and the agent is appointed by the same authority. It is clear that the two terms, officers and agents, are by no means interchangeable. One, deriving its existence from the other, and being dependent upon that other for its continuation, is necessarily restricted in its powers and duties, and such powers and duties are not necessarily the same as those pertaining to the authority creating it. The officers, as such, are the corporation. An agent is an employee. “A mere employment, however liberally compensated, does not rise to the dignity 'of an office.” 21 Am. & Eng. Enc. L. (2d ed.) 836. In Wheeler & Wilson Mfg. Co. v. Lawson, 51 Wis. 400, it was held that under a statute requiring an affidavit to be made by an officer of a corporation, the general- agent or managing agent, within the State, of a foreign corporation is not an. officer. In Farmers Loan & Trust Co. v. Warring, 20 Wis. 305, service was made upon the “principal agent” of a corporation holding in trust a railroad, when the statute required service upon a “principal officer.” In answering the question whether or not the ágent was a principal officer, the court said: “It is evident he was not, and must be regarded only as an agent, not as an officer of any kind, much less a principal officer.” A ruling that a “general manager” of a corporation was not authorized to verify pleadings, under a statute requiring verification by “an officer,” was made in Meton v. Isham Wagon Co., 4 N. Y. Supp. 215. In Raleigh R. Co. v. Pullman Co., 122 Ga. 704 (4), it was held that the term “general manager,” as applied to one representing a corporation, and especially a railroad corporation, imported an agent of very extensive authority; but it was not ruled that even the term “general manager” would import that the person holding that position was neces-' sarily an officer of the company. One distinction between an officer and an agent, suggested in Commonwealth v. Christian, 9 Phila. (Pa.) 558, is that an officer of a corporation, if illegally excluded from his office, may by mandamus compel the corporation to reinstate him; while an agent may be dismissed without cause, and his only remedy would be compensation in damages. It would not be contended that the “general agent of the defendant at Columbus,” in the event of his discharge, could be reinstated by mandamus. We do not think that the general agent at Columbus was an officer of the defendant company. Therefore his alleged waiver of a condition in the policy was not binding upon the company.

The' petition of the plaintiff further alleged that the extension of thirty days time for the payment of premiums was “the general custom of their business and was universal.” A custom that is universal may by implication become a part of a contract; for, in the absence of a stipulation to the contrary, it is supposed the minds of the parties met on the incorporation of this custom into the contract, as well as upon the written provisions of the same.' But when there is in the writing a distinct provision expressly denying a right claimed under the custom, the terms in the writing prevail and the custom goes for nothing. See Haupt v. Prudential Life Ins. Co., 110 Ga. 146. The general agent at Columbus had no authority to .change the contract as contained in the written policy, nor to make the contract which the policy would contain if the writing were reformed as prayed by the plaintiff. There was no error in dismissing the petition.

Judgment affirmed.

All the Justices concur