26 S.D. 632 | S.D. | 1910
Lead Opinion
This is an appeal by the defendant from a judgment entered in favor of the plaintiffs, and from the order-denying a new trial. The action was instituted originally by D. E. Chaplin as sole plaintiff against the defendant upon a policy of insurance bearing date of March 12, 1907, to secure the payment of the sum of $1,000 in case of the loss by ñre of plaintiff’s flour mill property situated in the town of-Hitchcock, Beadle county, in this state. Attached to the policy of insurance above described is the statement that: “Loss, if any, payable to A. J. Glidden, as his interests may appear.” And it is alleged that the premises were destroyed by fire on January 2, 1908. The original complaint being demurred to and the demurrer sustained, an amended complaint was filed, in which the other defendant, A. J. Glidden, was named in connection with D. E. Chaplin as plaintiff, and annexed to the complaint and made a part thereof is a copy of the policy on which
It is disclosed by the record that the policy in this action was issued by one B. Peterson, acting as agent of the defendant company, bearing date of March 12, 1907; that on May 20, 1907, a policy for $1,000 on the same property was issued by the Merchants’ Mutual Insurance Association of Redfie-ld, S. D., by one
It is provided in the policy in this action, in compliance with the prescribed, standard form, as follows: “Any person who solicits insurance or issues policies of insurance, or procures applications therefor, shall be held to be, and considered, the general agent of the insurer issuing the policy or making a renewal thereof, except as to proof of loss and adjustment thereof, and neither the application of the insured nor the by-laws of the company shall be considered as a warranty or a part of the contract of insurance.” And also: “It shall be the duty of the insurer, in order to avail himself of any provision in this policy rendering it void, to promptly cancel the policy as provided herein upon having or obtaining notice or knowledge of the existence of any facts or circumstances which would, according to the terms of this policy, render it void; otherwise it will be deemed to have waived such provision or provisions voiding the policy. Provided, that, if the grounds for cancellation under the last clause shall be distinctly specified in the written notice, such cancellation may be effected upon twenty-four hours’ notice to the insured; and actual notice to, or the knowledge of, any agent of the company as above mentioned shall be deemed notice to, and knowledge of, the company.”
(1) Was the evidence of Gray as to his agency admissible as against.the objections made by the counsel for the defendant?
(2) Was the evidence offered and' received on the part of the plaintiff as to the value of the premises' insured, competent or admissible under the pleadings in this action? Mr. Gray was called as a witness for the plaintiff, and testified as follows: “During the months of March, April, and May, 1907, I was writing fire insurance for four different companies.” Among the companies named were the Merchants’ Mutual of Redfield and the defendant company. He was then asked the following question: “Q. Mr. Gray, when did you commence to write insurance for ■the defendant company?” This question was objected to and objection overruled and exception taken. “A. I wrote quite a little insurance on the commission basis before I hired out to the company on a salary. I commenced working for them on a salary May 11, 1906, I think.'' * * * Q. You were what is known as the agent of the’ company?” This question was objected to as leading and calling for a conclusion of the witness, and riot the best evidence, that it is not shown that the witness solicited the application for the policy in question, and the fact that he solicited the other policy would not be’ binding on this defendant company as to the -policy in suit, and that it was at a date prior to- the issuance of the policy by the Re’dfield Company. Objection overruled and defendant excepted. “A. I was. Q'. And it was your business to solicit fire insurance for the defendant company from various -people from time to time, 'was it not?” ' Same objection and exception. “A. It was. Q. When did your term- as agent for the defendant company terminate? A. ' I -don’t know just the date, but I think the last’ I wrote for 'them was some time in October, 1906. Q: Mr. Gray, you were working on a commission ■basis for this company? A. After 1906. Q. Mr. Gray,' ón the •date of the issuance of this policy by the Merchants’ Mutual Insurance Association of Redfield, S." D./’were yoü 'soliciting insur
It is contended by the appellant that the court erred in admitting the evidence of Gray as to his agency, and we are inclined to the opinion that the appellant is right in its contention. It will, be observed the witness stated no facts as to any authority conferred upon him by the defendant to act as its agent at the time the Redfield policy was issued, and his answer to the questions was simply an expression of his conclusion or opinion upon a material question upon which the jury was to pass, viz., Was Gray the agent of the defendant at the time the policy of the Red-field Company was issued to the plaintiff, Chaplin, for the additional insurance? It will be further noticed that Gray had testified in answer to the question, “When did your term as agent for the defendant company terminate? A. I don’t know just the date, but I think -the last I wrote for them was some time in October, 1906.” As a general rule, it is not proper to allow a witness who is not an expert to express an opinion in any case upon a question with relation to whi'ch all the facts may be placed before a jury, and received as evidence, the opinion of a lay witness upon the precise issue submitted for trial in which case would permit the witness to usurp the province of the court or jury in trying the case. American Telephone & Telegraph Co. v. Green, 164 Ind. 349, 73 N. E. 707; McCornick v. Mining & Milling Co., 23 Utah, 71, 62 Pac. 820; State v. Williams, 67 N. C. 12; Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544; State v. Harris, 51 La. Ann. 1105, 26 South. 64; Clark & Skyles on Law of Agency (1st Ed.) p. 170. See 10 Ency. of Evidence, 27-28, and cases cited.
In American Telephone & Telegraph Co. v. Green, supra, the learned Supreme Court of Indiana, in discussing a similar question, says: “The facts exhibiting what authority appellant expressly conferred upon Tice, and whether it authorized him to make the agreement in suit, could have been fully placed before
In the case of McCornick v. Mining & Milling Co., supra, it was held, as appears by the headnote, that, “where agency is the question directly involved in a case, the reputed agent as witness may not give his opinion or state his conclusion as to such-agency, but may state the facts and circumstances concerning the various transactions between him and the alleged principals, leaving the court and jury to determine, under the facts disclosed, whether or not he was such agent.” And in the o-piñion the learned court says: “Under the evidence, the principal question appears to be whether Haven was, during -the term of the lease, acting a-s manager or agent of the lessor, or of the lessee. At the trial, sworn as a witness in behalf -of plaintiff, he was asked: ‘Were you manager of this English company (the Clifton Utah Company) or for any of the gentlemen referred to?’ To this question the defendant interposed an objection as being improper to establish agency by such evidence, and -the court sustained the objection, stating that a man cannot -prove his agency by his own statements. The action of the court in the premises has been assigned as error, and it is now insisted -that it was prejudicial to the right's of the appellant. We think not. Whether or not the court assigned a -correct reason for sustaining the objection, the question, under the circumstances of the case, was objectionable.
In the recent work of Clark & Skyles on the Law of Agency, supra, the learned authors state the rule 'applicable to this class of cases "as follows r “But where the question of agency is directly involved, an -agent, as a witness, cannot give his opinion or state his conclusion as ‘to the alleged agency; or, in other words, the fact of the agency cannot be established upon his testimony alone. He may merely state'the facts and circumstances concerning the various transactions between him and his alleged principal, leaving the" court and jury to determine, under the facts disclosed, whether or not he was such agent.” In io -Ency. of Evidence, supra, the rule is thus stated: “Where the question of agency- or of the extent of authority is made a principal issue, it is not competent for a witness to express an opinion upon the question. He must state -the facts. Testimony that a party is or is not an agent is a mere conclusion of law. Likewise, testimony that an agent had authority to do a certain act is a conclusion of law.”
We are clearly of the opinion, therefore, that the court in overruling the defendant’s objections to the questions propounded
It will be observed that the question as to whether or not Gray was still the agent of the defendant at the time the Redfield policy was issued through him to the plaintiff, Chaplin, was a material issue in the case; for, unless he -was such agent, his knowledge cannot be imputed to the defendant and his alleged notice to the secretary of the defendant in a conversation on the train several' months after the issuance of the Redfield policy cannot be regarded as notice to the defendant, for the reason that it does not affirmatively appear that sufficient facts were communicated to the agent to constitute a valid notice to the company.
On the trial the plaintiff was permitted to prove, over the objection of counsel for the defendant,.that certain improvements were made upon the property after the issuance of the policy in this action which was made by the plaintiff, Chaplin, and the value of the premises in such improved condition. This evidence was objected to as irrelevant and immaterial and not within the issues in the case, but was admitted by the court and exception duly preserved. It is contended by the appellant that this evidence was clearly inadmissible, and that its introduction was prejudicial to the defendant, and was calculated to prejudice the jury against the defendant. We are of the opinion that the appellant is right in this contention. The policy issued to the plaintiff, Chaplin, and made payable to Glidden for the sum of $1,000, was a valued policy under the provisions of our Code, and in an action upon the policy the plaintiffs, if entitled to recover any sum under the policy, were entitled to recover the full amount as specified in the policy regardless of the value of the premises insured. In other words, the parties had fixed definitely the amount the plaintiff was entitled to recover, and that the defendant should be required to pay in case it was liable for loss of the property. And the niaterial issue in the case was whether or not the plaintiff, in violation of his contract not to take out further insurance, had procured additional insurance without the assent of the defendant. It was immaterial, therefore, to this issue as to what improvements had
The judgment of the 'circuit court and order denying a new trial are reversed.
Dissenting Opinion
(dissenting). The jury found in answer to a special interrogatory upon conflicting evidence that Gray notified the defendant of the fact that the Redfield Company had issued a policy to plaintiff on the property covered by defendant’s policy “by stating that fact to J. G. Beck.” It is undisputed that Beck was the secretary or assistant secretary and manager of the defendant company when informed by Gray of the issuing, of the Redfield policy. The jury were at liberty to believe the testimony of Gray. Then for the purpose of this appeal the fact that Beck had actual notice is established. “Actual notice consists in express information of a fact.” Rev. Civ. Code, § 2450. Where information is communicated is not material. In this instance it was while Gray and Beck were traveling on a train. The latter did not cease to be defendant’s general officer when absent from defendant’s office. Notice to him was notice to the defendant. Having actual notice and not having canceled its policy, according to its terms, defendant waived the provision relating to additional insurance. This being so, the issues relating to Gray’s authority as local agent and to improvements are immaterial. I think the judgment should be affirmed.
