Gude v. Exchange Fire Ins.

Mitchell, J.

This was an action on a fire insurance policy. The defense was that, at the time the policy was issued, the property insured was covered by a mortgage, — a fact which, by the conditions of the policy, rendered it void. The reply was that the defendant accepted the risk with knowledge of the mortgage, and thereby waived the condition of the policy. It appeared that plaintiffs procured the insurance through one Case, who knew of the mortgage; hence the real issue was whether Case was defendant’s agent im soliciting the insurance and procuring the applications for it, so that his knowledge of the mortgage would be that of the defendant; and the only question here is whether the trial court should have left that question to the jury, instead of directing, as he did, a verdict for defendant.

The evidence was as follows: Case came to the plaintiffs in Duluth, and solicited insurance on their property, saying that he represented several companies, among which he named defendant. •That plaintiffs verbally authorized him to secure and place insurance on the property to the amount of several thousand dollars, leaving it to his judgment in what companies to place it. . Subsequently Case delivered to plaintiffs, among other policies in other companies, the policy in suit, signed by N. R. Thompson. & Co., of Minneapolis, as agents for the defendant, and collected the premium, which was subsequently received by defendant. That in placing this insurance the plaintiffs had no transaction with any one but Case. That this is the only policy they ever had with the defendant. That the name of Case does not appear on the policy, as agent or otherwise. There is no evidence that Case ever acted, or assumed to act, for the defendant in any other transaction. Neither is there anything to show, except so far as be inferred from the facts above stated, tliat defendant ever knew that Case was claiming to act for it in this transaction, or that defendant delivered the policy directly to Case, or received the premium directly from him, or in fact knew of his existence. Upon this state of the evidence the court was right in directing a verdict. The burden was on the plaintiffs to prove that Case was the agent of the defendant, with authority, express, implied, or apparent, to waive this condition of the policy. Of course, the, mere statement of Case that he represented the defendant was no evidence of that fact. Giving to the evidence the construction most favorable to the plaintiffs, and assuming that he personally presented to the defendant an application for this insurance, and received the policy directly from, and paid the premium directly to, the defendant, it does not appear that he had any relations whatever with the defendant other than an insurance broker, who, in his own behalf, solicits insurance, submits applications to the company, and, if accepted, receives the policy for the insured, and on its delivery collects the premium, and pays it over tojihe company.

Such a broker might be deemed the agent of the company for the purposes of delivering the policy and collecting the premium, but nothing more. It is true that Case might have been the agent of the defendant, but the evidence, as far as it goes,-is quite, or even more, consistent with the hypothesis that he was a mere broker; and it was incumbent on plaintiffs, on whom was the burden of proving the agency, to go further than this. We think circumstances were wholly wanting from which the jury would have been warranted in finding the fact of agency. The case of Kausal v. Minnesota Farmers’ Mut. Fire Ins. Ass’n, 31 Minn. 17, (16 N. W. Rep. 430,) relied on by plaintiffs, is not in point. In that case an agency to procure applications for insurance was an admitted or established fact, and the question was. as to the extent of the authority, implied or apparent, of such an agent.

Order affirmed.

Yanderburgh, J., absent, took no part.

(Opinion published 54 N. W. Rep. 1117.)

Application for rcargument denied May 23, 1893.