Citation Numbers: 49 Ga. 563
Judges: Johnson, McCay
Filed Date: 10/15/1872
Status: Precedential
Modified Date: 1/12/2023
It must be remembered that the complainant’s case in this bill cannot stand upon any contract to insure. Contracts of insurance must be in writing: Code of 1873, section 2794. To justify a verdict for the complainant, it must appear that by tiie conduct of the company’s agent it has been put in such a
We do not think there is any evidence in the record to justify the verdict, to make out these necessary ingredients of a case for the plaintiff. It appears that Rust was the agent, taking river insurance for three companies, and that he was also a warehouseman, having cotton in store for this very plaintiff. Two of these companies were represented at Albany by Rust, and at Columbus by Bowers. The Underwriters’ was represented at Columbus not by Bowers but by Wilcox. The plaintiff applies to Bowers (not the agent of defendant.) Bowers declined, because, to take the insurance would be to interfere with the Albany agency of those companies which he represented at Columbus, and Rust, at Albany. As the plaintiff was an old customer and friend, he, however, made himself busy to get the cotton insured. He applied to Wilcox, the defendant’s agent at Columbus. Wilcox declined. He had told the plaintiff that if he failed with Wilcox he would instruct Rust to insure; and he wrote to
We think it very probable that Cromwell supposed Rust would insure them from this act, though it would be going
But there was nothing said by Rust to Cromwell, nor by Cromwell to him, to indicate that Rust, in showing Bowers’ letter and in getting the marks of the cotton, was acting as the agent of the Underwriters’ Agency. Cromwell says distinctly that nothing of the kind occurred. It is true that in one of his answers he does say that no other company was mentioned but the Underwriters’ Agency. But it is plain that, in this, he is referring to the fifty bales insured in that company, in March, since he says several times that at the interview in February, when Rust showed him Bowers’ letter, and he gave the marks of the cotton, nothing was said as to what company it was to be insured in. Is not the presumption just as strong that it was to be insured in the Home or ACtna as in the Underwriters’ ? Nay, is not the inference just as strong that, in getting these marks, Rust was not acting as the agent of any of the insurance companies, but as a warehouseman, and as the agent of the plaintiff?
We do not think the fact that the fifty bales was, after the first lot was lost, (after Rust had refused to recognize it as insured, and repudiated the inference they sought to draw from, his letter of the 6th of February, and his conversation on that day with Cromwell, taking the marks, etc.,) has any thing to do with this suit. It seems to us absurd to say that because Rust, in March, on the special application of Cromwell, to insure the fifty bales in the Underwriters’, did so in- sure it, receiving from him the premium in cash, is to be held as . acting as the Underwriters’ Agency, in his letter of the 6th of Februaiy, and in his acts of that date, as testified to by Cromvwell. Had he, on the application of Cromwell, insured this -.fifty bales in the Home or Aitna, would that have shown he
It is undoubtedly true that Mi\ Rust’s conduct and his testimony does not, in view of what the other witnesses say, appear to be quite free from blame. We are not prepared to say that the evidence, taken altogether, does not show that when he spoke to Cromwell, and when he wrote the letter of the 6th, he did intend to insure both lots of cotton; but we are very clear that the evidence does not show that, as agent of the defendant, he undertook to do so. Had he insured both lots in the Home or .¿Etna, or had he gone to some other insurance agent and insured them in some company he did not have anything to do with, he would have done everything Bowers requested him to do, everything Cromwell thought he was about to do, and everything Bowers supposed, from his letter of the 6 th, he had done. Under such a state of facts, it seems to us that it is entirely gratuitous to charge the Underwriters’ with the damages flowing from Rust’s failure to comply with Bowers’ request.
Had Bowers written to Rust as agent of the Underwriters’, and Rust showed Cromwell such a letter — had Rust replied as such agent — had Rust been the representative of no other company doing that kind of business — the verdict might have been sustainable, though, even then, it would have been an extreme case.
If, when the law requires a contract to be in writing — men trust to mere words — it ought to be a strong case to make a
Judgment reversed.