70 Ind. 1 | Ind. | 1880
— In this action, the appellant sued the appellee upon two promissory notes, alleged to have been executed by him to the appellant. Of these notes, one for the sum of forty dollars \vas dated May 27th, 1873, and the other for the sum of twelve dollars was dated July 28th, 1873, and each of the notes purported to have been given in consideration of a certain policy of insurance, issued by the appellant to the appellee. It was alleged by the appellant, in its complaint, that the said notes were past due and wholly unpaid, and judgment was demanded thereon in the sum of seventy-five dollars.
The appellee answered in three paragraphs, in the first of which he alleged, that he did not execute the notes in suit, and this paragraph was verified by his oath. In the second 'paragraph of his answer, the appellee alleged, in substance,-that, if the note in suit was given at all, it was given in consideration of a policy of insurance against loss by fire, issued to the appellee by the appellant; that, at the time of the contract, the appellant was a foreign corporation, organized and incorporated in the State of Illinois, and under the laws of that State, and was then and since a foreign corporation; that one William A. Macy assumed to act for the appellant, and held himself out as its agent, and -as such made the contract for the issuing of said policy, and the making of said note, and that both the contract for the issuing of said policy, and the note in suit, were procured by and through the said William A. Macy, as the appellant’s agent; that at that time the said William A. Macy had no certificate of
It will be observed, that the allegations of this second paragraph of answer are applicable only to one single note, and that they do not indicate which of the two notes in suit the paragraph had reference to. The third paragraph of the answer contained substantially the same allegations of fact as the second paragraph, and is alike indefinite and uncertain in regard to which of the two notes in suit it was intended as a defence. We will, therefore, consider the two paragraphs of answer to be, as they were probably intended, the second paragraph as an answer and defence to the note for forty dollars, and the third paragraph as an answer and defence to the note for twelve dollars.
To these two paragraphs of the appellee’s answer, the appellant replied in two paragraphs, in substance, as follows :
1. A general denial; and,
2. That the said William A. Macy acted in the name of and for Coggshall & Dickinson, residents at Richmond, Indiana, in negotiating and soliciting said insurance, who were the agents of the appellant and were duly authorized, according to law, to act as such agents, and who had, before the times of the making of the notes in suit, duly filed in the clerk’s office of said Henry county, on the 1st day of January, 1873, and on the l3t day of July, 1873, a certificate of their authority to act for the appellant and acknowledge service of process, as required by law; which
■ The issues joined were tried by a jury, and, under the instruction of the court, a verdict was returned for the appellee, the defendant below. The appellant’s motion for a new trial having been overruled, and its exception entered to this ruling, judgment was rendered by the court on the verdict, against the appellant and in favor of the appellee, for his costs.
The only error assigned by the appellant, in this court, is the decision of the circuit court in overruling its motion for a new trial; and in this motion the only causes assigned for such new trial were as follows:
1. The verdict of the jury was not sustained by the evidence and was contrary to law; and,
2. For error of law occurring at the trial and excepted to, in this, that the court erred in its instruction to the jury trying the cause.
The instruction of the court to the jury, which is complained of by the appellant as eiToneous, and which was the only instruction given by the court, was in these words:
“ The jury will return a verdict for the defendant.”
Did the court err in thus instructing the jury trying this cause, upon the evidence introduced, to return a verdict for the appellee? This is the only question in this case for the decision of this court; and it seems to us that this question must be answered in the affirmative. The appellee has not favored this court with any brief or argument in support of the rulings of the court below; and we are, therefore, wholly dependent upon the exhaustive brief of appellant’s counsel, for such information as we have in regard to the grounds of those rulings.
There are cases in which the court before whom the cause may be tried may very properly instruct the jury to return a verdict for the one party or -the other, without
On the trial of this cause, the appellant showed by the uneontradicted evidence of William A. Macy, mentioned in the appellee’s answers, that in negotiating with the appellee for the insurance of his property, for which the notes in suit were given, the said Macy acted “ as a solicitor for the Messrs. Coggshall & Dickinson, and transacted the business for them and in their name.” The appellant then gave in evidence the certificates of authority, mentioned in and filed with the appellant’s reply to the appellee’s answers. These certificates of authority were issued by the Auditor of State of this State, under his hand and the seal of his office, and differed each from the other only in date and in the period of time covered thereby. These certificates authorized Coggshall & Dickinson, as the appellant’s agents for said county of Henry, to transact the business of insurance for the appellant, as its agents, at the
In section 1 of the said act of December 21st, 1865, it is provided “ That it shall not be lawful for any agent or agents of any insurance company, incorporated by any other State than the State of Indiana, directly or indirectly, to take risks or transact any business of insurance in this State, without first producing a certificate of authority from the Auditor of State ; and before obtaining sueh certificate, sueh agent, or agents, shall furnish the said auditor with a statement, under oath, of the president or secretary of the company for which he and they may act, whieh statement shall show: * * * * *
“ Fourteenth. The act of incorporation of such company.”
Near the close of the same section, it is further provided, that “ the agent or agents obtaining such certificates shall filé the same, together with a certified copy of the statement on whieh it Avas obtained, in the office of the clerk of the circuit court of the eounty in Avhieh sueh agency is established, both of Avhieh documents shall be carefully preserved for pnblie inspection by said clerk.” 1 R. S. 1876, p. 5»4.
The record of this cause shows, that both the certificates of authority issued by the Auditor of State to Ooggshall & Dickinson, and copies of the statements on which said certificates were obtained, certified by the auditor to be true a,nd correct copies, were duly filed in the office of the clerk of the circuit court of Henry eounty. Upon their face, however, both of these certified copies
"We can not adopt or approve of a construction of the provisions of the statute, above quoted, which would punish the appellant by avoiding its contracts, for the mere failure or omission of the Auditor of State to furnish the appellant’s agents-with a certified copy of its act of incorporation, which, it appears, the appellant had furnished to such auditor. It will be observed that, by the express terms of the statute, the legality, and of course the validity, of a contract of insurance made in this State by the agent or agents of an insurance company incorpo
For the reasons given, we are of the opinion that the court erred in its instruction to the jury to return a ver-diet for the appellee, and that, for this error of law, the appellant’s motion for a new trial ought to have been sustained.'
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings in accordance with this opinion.
