Damon v. Kaler

| Mass. | Jan 7, 1918

Pierce, J.

The defendants are general insurance brokers and are agents of certain foreign and domestic insurance companies with offices in Boston. On May 8, 1914, the plaintiff became a holder of a policy of the Buffalo German Insurance Company, a company represented by the defendants, for a term of three years, on household furniture in Lynn. Subsequently, on the removal of the plaintiff to Nahant, the policy ceased to be in force in the former location and thereafter covered the property described therein at the new location with “the assent in writing or in print of the company” as shown by a “rider” which was attached to the original policy and countersigned by the defendants as agents of the insurance company. On a Saturday in January, 1915, the plaintiff changed his residence again. Before moving he had told one Hallett that he was going to move, and Hallett had told him "that he had better bring in the policy and have it transferred.” Hallett had taken the policy to the defendants at their office in Boston, and had returned it to the plaintiff after the rider was put on at the time the policy was “transferred to Nahant.” On the following Monday the plaintiff brought the policy and handed it to Hallett upon Hallett’s statement that he would fix the business up the same as he did when he, the plaintiff, moved from Lynn. Hallett put the policy in his pocket, went to Boston the next day but “ forgot to have the transfer made.” On the following Wednesday, the furniture was destroyed by fire and the defendants had not been notified of the removal.

No question arises as to the negligence of Hallett. The question at issue is, was the evidence sufficient to warrant the finding of the jury that Hallett undertook, as the agent of the defendants and within the scope of his authority, to have the policy of the plaintiff delivered to the defendants to be changed so as to bear the assent of the company to a removal of the insured property to a different location.

Upon this issue there was evidence that Hallett “went to work for” the defendants three years before the occurrence with the plaintiff; that his work was writing applications for fire insurance; that he held a license, procured and paid for by the defendants, to write insurance in the Westchester Fire Insurance Company; that he didn’t sign policies in that company; that the defendants did sign them on his applications, if they thought the risk was up to the standard; that the defendants charged him with the premiums and credited him with the commissions upon all policies issued on his applications; that the defendants delivered the policies to him and he delivered them to the assured; that when an assured was going to move he would send his policy into the office by Hallett to have a rider attached; that the company if it wished to assume the new risk would attach the rider and the policy would be mailed back to Hallett who would deliver it to the assured; that sometimes there would be a decrease in premium, if the risk was better than the one on which the original policy was written, and sometimes there would be an increase; and that this happened quite frequently.

Specifically as regards the policy of the plaintiff, there was evidence that Hallett "got the plaintiff’s policy in the same way that he got the others;” that he took in the application as usual and later a policy was issued; that he applied for a policy in the Westchester; that the defendants struck out from the application the words and figures “Westchester $500” and issued on the same application a policy in the same amount in the Buffalo German Insurance Company; that the policy was delivered to Hallett; that Hallett was charged with the premium and credited with the commission, and that the policy thereafter was delivered to the plaintiff who paid the premium to Hallett.

On the above facts and the inferences to be drawn therefrom, we think the jury would be warranted in finding that Hallett was the agent of the defendants and that he acted within the scope of his authority in undertaking to deliver the policy of the plaintiff to the defendants.

It follows that the motion to direct a verdict on all the evidence was denied rightly, as were the requests numbered two, three, four, fifteen and eighteen, each of which rests upon the assumption that Hallett was the agent of the plaintiff and was not the agent of the defendants.

The facts assumed in requests numbered six, eight and seventeen were properly received as relevant to the proof of the business relation of the parties to be inferred from other transactions in their nature closely related to the facts in issue.

Exceptions overruled.