76 Tex. 653 | Tex. | 1890
As the court below declined to file con clusions of fact and law, we can not know on what issue or issues the cause was decided.
It is contended for appellant that Bridges was the agent of the assured for all purposes, and that notice of cancellation to him was notice to them; while it is claimed for appellees that Bridges was the agent of appellant for all purposes. ■
In this contention no question is made whether the acts of McHair, the clerk of Bridges, and notice to him are to be deemed as binding on each party as though his act was the act of Bridges, and notice to him as fully binding as would have been actual notice to Bridges. .
We are of opinion that the claims of neither party in their entirety can be sustained, but that in some respects Bridges, if we assume that he and his clerk are to be treated as one, was the agent of each.
In making application to him for insurance he was not treated by Glenn & Son as the agent of appellant.
They wrote to him asking insurance, but designated no company in which they desired it, nor did they fix rates with him, but they did empower him to obtain a policy for them.
In so far as he acted in doing this he must be treated as the agent of the assured. He was essentially an insurance broker.
In Oil Company v. Insurance Company, 64 Hew York, 85, it was held that such a broker may be regarded by the insurer as clothed with full authority to act for his principal in procuring, modifying, or canceling a policy obtained through him, and that his acts in these respects are binding on his principal.
The broker in that case seems to have had entire control of the oil company’s insurance business, with power to place and keep upon its property a large line of insurance.
In a more recent case the same court held that the authority of a broker who is not a general agent to place and manage insurance on his principal’s property, but is specially employed to procure insurance on certain property, terminates with the procurement of the policy, and that no authority to discharge the contract could be implied from the original employment. Herman v. Ins. Co., 100 N. Y., 411.
That case in some of its facts was very similar to the present. In disposing of the case the court said: “ The ’defendant reserved the right to cancel the policy on notice to the insured. This condition would | be satisfied by personal notice to the plaintifí or to an agent authorized
“In this case the brokers had no general authority to represent the plaintiff" in all matters relating to the insurance as did the agents in the case of Standard Oil Company v. Triumph Insurance Company, 64 New York, 85; nor had they any apparent authority to accept notice of cancellation. * * * The defendant relies upon a special clause in the policy which declares that 'it is a part of this contract that any person other than the assured who may have procured this insurance to be taken by this company shall be deemed the agent of the assured named in the policy, and not of this company under any circumstances whatever relating to this insurance.’ This clause was primarily intended, no doubt, to define the relation of the insured to a person who applied for and procured the insurance in a case where the same person was also agent for the insurer in taking risks and soliciting insurance; or, in other words, in a case of double agency. The obvious meaning of the clause is that the person procuring the insurance shall, in respect to that matter, be deemed the agent of the insurer, whatever his relation to the company in other respects may be, and that in any transaction in respect to the particular insurance he shall not be deemed the agent of the company by reason of any such relations.”
This last case seems to us to establish the rule consonant with reason as well as authority. Grace v. Ins. Co., 109 U. S. 278; Ins. Co. v. Hartwell, 100 Ind., 566; Deems v. Ins. Co., 83 N. Y., 169; White v. Ins. Co., 120 Mass., 333.
The case of Insurance Company v. Reynolds, 36 Michigan, 504, was in its facts much like the case of Oil Company v. Insurance Company, above cited, and practically the same ruling was made.
We hold that Bridges was the agent of assured to procure the policy, but that with its procurement his agency ceased; hence notice of cancellation given to him was not notice to assured.
The next question is, how far was he the agent of the insurance company? There is nothing in the entire record from which it can be held that he was the agent of the insurance company for any purpose other than to receive and remit the premium. So far as between the company and himself, the duty to do this would be implied from the facts. There can be no reasonable claim that he had power to issue a policy or to con
The broad declarations of the assured that he was agent, unsustained by a single fact tending to show their means of information or the< grounds for their declarations, can not be given weight against overwhelming facts. He knew not of the existence of the policy until after the-property had been destroyed, and there can be no pretense that he, or-even his clerk, gave consent in any manner to additional insurance after the policy issued.
Had he been agent of the company at the time it is claimed that he promised to permit further insurance, it could not be held that such a-promise made long before the policy issued would bind the company.
At the time it is claimed that promise was made assured held policies; for not more than $3000, and then the company or any authorized agent might be willing to consent to additional insurance, which would not be-consented to after the additional insurance given by the policy in question existed.
Whether consent to additional insurance would be given would depend on the insurance and value of stock existing when consent to additional insurance was asked.
The policy provided that if other insurance was obtained without consent of the company the contract of insurance should cease.
Additional insurance was obtained without the consent of the company, and in accordance with its terms the policy became void, unless the insertion in the policy of the words “total concurrent insurance, $4000,” gave-to the assured the right to procure other insurance without further consent of the company.
These words are detached from every other part of the policy, and are-not used in any connection which illustrates clearly the purpose of their-insertion.
In view of the provision in the policy that it should become void “if the assured have or shall hereafter obtain any other policy or agreement for insurance, whether valid or not, on the property above mentioned or any part thereof,” Unless consent thereto was given and evidenced in the manner provided, they may have been inserted for the purpose of determining that the procurement of insurance in excess of $4000 without consent was a breach of the policy—to determine what within the intent of the parties should be deemed other insurance.
That view receives support from the fact that with the policy in ques
It seems to be contended by appellant that these words limited the total insurance to 84000, unless consent to additional insurance was expressly given, and by appellees that these words gave Glenn & Son the right to take out policies to the extent of $5000 without consent of appellant.
If the words evidence any agreement at all, or are to be given any effect, then it becomes necessary to construe them.
If they are used for the purpose of limiting the right of assured, with or without consent, to procure other insurance, what do they mean?
The word “total” means “all,” “the whole,” which in sum is $4000. This sum, however, must be made up of insurance concurrent. The word “concurrent” means literally “"running together,” and in the connection here used has the sense of “ co-operating,” “ contributing to the same event” (Worcester); “ acting in conjunction, agreeing in the same act, contributing to the same event, co-operating, accompanying” (Webster).
In the absence of something in the context showing that the word was not used in its ordinary sense, it must be understood so to have been used, and nothing of that kind is found. To be concurrent the insurance must operate at the same time, upon the same property, and look to the indemnity of the insured in case of its loss or destruction from casualty insured against.
The three policies held by Glenn & Son amounting to $3000 were concurrent with the policy sued on, and with it made total concurrent insurance $4000; and that subsequently obtained, if all the policies are permitted to stand, would give total concurrent insurance $5000.
Erom this it follows that if the words evidence an agreement and do not simply declare a fact, it was necessary the consent of the company to subsequent insurance should have been obtained. If they were used simply to declare that the policy in question, with others existing, gave $4000 insurance on the property recognized to be valid, the same result follows.
Some other questions unnecessary to discuss are presented, but looking to the case made, the want of consent to insurance obtained after the policy sued on was issued required a judgment for appellant.
The judgment will therefore be reversed, and judgment here rendered for appellant.
It is so ordered.
Reversed and rendered.
Delivered March 28, 1890.