113 Pa. 386 | Pa. | 1886
delivered the opinion of the court
The policy of fire insurance upon which this suit is brought
It was competent, however, for the company to waive this provision; they were not bound to adhere to this clause of their contract, inserted solely for their protection, if they chose to dispense with it. Whether or not the company did dispense with it, was perhaps the question in the causo ; whether there was evidence from which that fact might fairly be inferred, is the question for consideration here.
That Robert Crane, at the time the policy was applied for, was the defendant’s agent, for some purpose, is plain ; what power he possessed to bind bis principal, with reference to the payment of the premium, must be ascertained from an examination of the testimony. The court below Laving entered a compulsory nonsuit, the plaintiff’s evidence must be taken as 'true; not only the facts directly established, but every reasonable inference therefrom.
Crane, having been called as a witness, testified on this branch of the case as follows :
“I was, in December, 1880, the agent of the Susquehanna Mutual Insurance Company for certain purposes: to receive applications, forward them to the company, and, if approved, they to write the policies, and send me the policies — I to make record of the policies, and to deliver to the assured or his agent. I collected the premiums and remitted the same to the company, less my commissions. I received this policy from the company direct by mail, and delivered it to Thomas J. Lancaster. I had a running account with Mr. Lancaster. In March, the day before the fire at the Elkins’s property, he paid me $100 on account.”
Upon cross-examination, he said :
“I commenced business with the Susquehanna Insurance Company, April 20th, 1880 ; my appointment was in writing. I did not have a certificate under seal. I got permission from them to send them business, and it resulted in an agency for certain purposes. I sent them business as agent, and signed my name as such in communications to them. There were a good many other details. I did not always sign my name as Robert Crane, manager. Ninety-nine times out of one hundred I signed as agent.”
Being recalled and examined by trial judge, Crane testified :
“I charged myself in the day-book with the premium. I was responsible for the premium. They looked to me for the payment of the premium or the return of the policy. I often advanced the money to the companies. I was obligated to pay the company the premium after I had received and delivered the policy, as agent of the company.”
Now if it be true, that an arrangement to this effect existed between the company and Crane, and that may be fairly inferred from the evidence, the arrangement would seem to indicate that the company was content to accept the responsibility of their own agent for such sums.as he might receive, or otherwise provide for, on delivery of the policies, and to substitute the personal liability of the agent in the place of the securitj which the suspension clause in their contract afforded.
This implication is greatly strengthened by the course of business which the agent pursued in the conduct of the company’s business. He delivered such policies as he chose, and charged the premiums in an account which he kept. He had a running account with Lancaster, and the premiums for this insurance were charged up to Lancaster when the policy in suit was delivered to him. The effect of such a course of business as respects Crane certainly was to substitute the liability of Lancaster for that of the assured, and Lancaster says he usually rendered bills to Mr. Elkins once in three months.
In view of the course of business pursued by this company with Crane, and by this agent in the consummation of their contracts, we think the implication might fairly arise that any absolute requirement of the policy, as to the actual prepayment of the premiums, had been dispensed with, and that the obligation of the agent to pay'the premium was in effect the payment of it by the assured. If Crane had advanced the money to the company, and delivered the policy, no one can doubt that it would have taken immediate effect, and in what respect can there be any difference, in principle, if Crane, with the company’s consent, assumed the payment, thus substituting his personal liability in place of the money? Lancaster became debtor to Crane and Crane to the company, and this, in view of the course of business pursued by the company, would, as between the insurer and the insured, we think, be equivalent to actual payment.
We think there was enough in this case to require its submission to the jury.
The judgment is therefore reversed, and a venire facias de novo awarded.