15 Mo. App. 215 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is an action to recover from defendant $364, which it is alleged was paid to defendant by plaintiff, on making application for life insurance, upon the agreement that, if the application should be rejected, defendant would return the money. It is alleged that the application was rejected, and the money not returned. The answer was a general denial. There was a verdict and judgment for plaintiff.
There was testimony tending to show the following state of facts: Defendant' is a foreign corporation engaged in the business of life insurance. It has an office in St. Louis, and A. B. Denton was its chief agent for Missouri. Harvier & Ryan, on April 13, 1881, were carrying on business together in St. Louis, holding themselves out as general agents and insurance brokers. At that date Denton addressed to them the following letter: —
“ St. Louis, April 13, 1881.
“Messrs. Harvier & Ryan, Insurance Brokers, St. Louis, Mo.:
“ Gentlemen — Your proposition to furnish life business to the Connecticut Mutual has been favorably considered. Until otherwise notified by me, I will allow you upon the
“ Yours respectfully,
“A. B. Denton,
“ General Agent.”
An experienced life insurance agent testified on behalf of plaintiff, that the term “ placing policies of insurance ” is one of general use in insurance companies, and which has a technical meaning; that it means, soliciting the application, forwarding it to the general agent or the company, and the consummation of the transaction ; that the insurance is not regarded as “ placed,” until the premium is paid ; and that “ furnishing life insurance ” is a technical phi-ase, meaning, in the insurance business, the same as “ placing” it.
The defendant had a printed private manual of instructions and rates to agents, which, amongst other things, has the following:
“ If the applicant desires to make a payment on account of premium at the time of making the application, the agent may give therefor a receipt in the following form, and no other, and a duplicate thereof must accompany the application:
“ ‘ Received the sum of--dollars on account of premium on an insurance of--dollars, on the life of -, of--county of-- and State of -, for which an application dated -has been made to the Connecticut Life Insurance Company of Hartford. Said insurance to take effect from the date hereof, provided the application therefor be approved and accepted by said company. The policy, if issued, to be delivered by me, when received, to the applicant on the return of this receipt to me. It is expressly understood and agreed that, if the application for the above insurance be declined by said company, it shall be held that no insurance has ever been created under this receipt,
“ ‘ Dated at- , this-, 187.
it t-Agent at-.’
“ By securing payment of premiums when the application is made, the agent avoids the contingency of being unable afterwards to deliver the policy and will often save much time and labor for himself, and save the company from expense.”
With the contract with the defendant and a copy of this book of instructions in his possession, J. Yolney Byan, of Harvier & Byan, went to Sedalia, Missouri, where he had some acquaintance already, and introduced himself as the agent of defendant. At the solicitation of Byan, plaintiff applied for a policy in defendant’s company, and paid the premium of $364.00 to him. Plaintiff and other persons were examined by a physician at Sedalia. Plaintiff, at the time of paying the premium, received from Byan a receipt in the form set out above, signed “ Harvier & Byan, agents at St. Louis, Mo.” On the 9th of May, 1881, Denton, the general agent, received the following communication from Harvier & Byan: —
“We hand you herewith applications: John H. Both-well, $3,000; Joseph D. Sicher, $2,500; John H. Mentz, $2,500 ; B. T. Gentry, $500 ; Frank E. Sicher, $3,000 ; N. Lee Porter, $3,000; Jas. C. Thompson, $2,500; Cyrus Newkirk, $2,500 ; total, $24,000. Premiums on same will be paid at this office on delivery of policies to us.
“ Yours very truly,
“ Harvier & Bvan.”
The men named in this letter were all examined at Sedalia by a physician for Byan. Some of the certificates were' delivered by the physician to Byan; others, the physician forwarded, by Byan’s direction, to Denton at St. Louis. These had been returned to him by
“ Mr. J. Y. Ryan, of Harvier & Ryan, insurance brokers, has submitted your application for insurance in the Connecticut Mutual, together with others from citizens in Sedalia, all of which will be forwarded to the company and passed upon in due course. We are highly gratified to receive it, and trust that your connection with this old and sterling company will be most satisfactory. But reports have come to us which we hope are not true, that these applications were obtained by Mr. Ryan organizing a so-called board of directors of the Connecticut Mutual, and by pledging that the company’s funds should be loaned in Sedalia through the agency of this board, etc., etc. Mr. Ryan has no authority whatever for making any such pledges, or holding out any such inducements to get business, and I sincerely trust we have been entirely misinformed in regard to it. But I have deemed my information of sufficient importance to warrant my writing to you about it confidentially; for, although we are always glad to get good business, we had rather have none than business obtained in the wrong way. I would be glad to hear from you about this matter by return mail, and will hold anything you may say as strictly confidential.”
Four days afterwards, Mr. Denton wrote to plaintiff that the application for insurance handed to Denton by Ryan is in Denton’s hands awaiting plaintiff’s orders ; and that Denton had notified Harvier & Ryan that no policy would be issued upon it. This letter refers plaintiff to another letter of same date written by Denton to another applicant for insurance in Sedalia, in which Denton states that Ryan never was an agent of defendant; that he was a mere broker, obtaining insurance from different companies ; and that the writer first knew that Ryan was operating at
A great deal of testimony was brought out by defendant, on the cross-examination of plaintiff’s witnesses, and against the objection of plaintiff, tending to show that Ryan was a swindler, who procured insurance and collected premiums in Sedalia, on the fraudulent representation that his firm had replaced the old agent in St. Louis, and by setting on foot a plan to organize a board for the purpose of investing, in Sedalia, the surplus funds of defendant, claiming that he had full powers to act in this matter for the company. According to Ryan’s plan, all the members of such a board of ten were to be policy holders of the company ; the attorneys were to be paid, and the others were to benefit incidentally. Plaintiff was talked of as a secretary of the board. He swears, however, that he would have insured on the application of Ryan, independently of any view of qualifying himself for membership of the projected board. Defendant offered to show that the copies of blank receipts which Ryan had in Sedalia, as well as certain blanks for forms of use in carrying out Ryan’s project of a board for local investment of the funds of the Connecticut Mutual in Sedalia, were printed by Ryan’s order at Sedalia. But the court excluded the evidence.
The court gave the following instruction at the instance of plaintiff: —
“ The court instructs you that if subsequently to the date of the written communication from A. B. Denton to Harvier & Ryan, the same set forth in the stipulation read in evidence, that said Harvier & Ryan or said Ryan went to Sedalia, Missouri, and obtained from plaintiff his written application for a policy of insurance in the defendant company, and delivered the said written application into the hands of said Denton, and that said Denton thereafter
The following instructions asked by defendant were refused : —
1. 44 The court instructs the jury, that if they shall find and believe from the evidence that the plaintiff in this suit was induced in whole or in part to make his application for insurance in the defendant’s company, by the representation of Mr. Ryan, that he was authorized to organize a 4 local board,’ for loaning the money of the defendant company, of which board plaintiff was to be a member, then the jury will find for the defendant.
2. “The court instructs the jury, that before Mr. J. Volney Ryan could become an agent of defendant company, so as to authorize him to bind the defendant by receiving the premium sued for in this case, from the plaintiff, it was
.3. “The court instructs the jury, that, there being no proof that the defendant company or Mr. Denton, its agent, knew the plaintiff had paid the premium to J. Yolney Ryan, in the absence of such proof, the rights of the plaintiff are measured by the actual contract between Ryan and the defendant company, which provided that Ryan should not have the right in behalf of the company to receive and receipt for the premium.
4. “ The court instructs the jury that the right of J. Yolney Ryan to receive premiums can not be inferred from the authority to take applications for insurance ; and there being no proof that said Ryan had authority from the defendant to receive premiums, therefore, Ryan had no such authority as the agent of the company.
5. “ The court instructs the jury that under the contract between Harvier & Ryan and the defendant corporation, J. Yolney Ryan had no authority to bind the defendant by receiving the premium from the applicant for insurance, and, therefore, the payment of premium by plaintiff to said Ryan was not a payment which made the company liable for the re-payment thereof.”
The authority of an agent is to be determined by the nature of his business, and, on the face of the matter, is coextensive with its requirements. A mere broker, who had no other agreement with an insurance company than this, that he should receive a certain percentage on premiums paid at the office of the company, or to the agents of the company authorized to receive them, in all cases in which the person paying the insurance premium was induced by his solicitations to insure in the company, might not be an agent of the company to receive any premium. But, in this case, the written agreement of the company with Ryan shows that Ryan was more than a mere broker, such as we
The first instruction asked by defendant was properly refused. It matters not what influence may have led plaintiff to apply for insurance in defendant’s company. If defendant appointed Ryan to solicit insurance and receive applications for insurance in Sedalia, Ryan was also its agent to receive the payment which the company authorized such agents to receive on taking the application; and whether defendant’s general agent in St. Louis understood well- what he was doing, and actually intended to appoint Ryan as its agent in Sedalia or not, if he gave him a writing from which such appointment might fairly be inferred, and ratified his acts done within the scope of such agency, then, for the jiurposes of this case, the premium received by Ryan was received by the company, and the contract made by Ryan that the premium should be returned if the application was not accepted, was binding upon the company, no matter what views of other ortfurther benefit to himself the applicant might have had in applying for insurance.
The second instruction was properly refused, because one dealing with the agent of an insurance company has a right to presume that the company has complied with the insurance law, which does not provide that a certificate from the insurance department is necessary to create the relation of agent to an insurance company, or that there can be no such agency without such certificate. Rev. Stats., sect. 6011. Defendant should take all the precautions, and obey all the provisions of the law, in appointing its agents, but, if it neglects 'these statutory provisions, it can not hold to money received from its agents on the -ground that it has neglected to obey the law which requires that it procure annually and furnish to all its solicitors, copies of its renewed certificates of authority.
The third instruction assumes that the actual contract between defendant and Ryan was, that Ryan should have
As to the fourth instruction, we think, that in view of the instruction of the company to its agents, as to which there was no dispute, the right fo receive premiums might be inferred from the right to receive applications in a distant city and forward them to the general agent in St. Louis. The fifth instruction was properly refused, for the reason already stated.
In affirming this judgment, we lay down no general rule that an authority to receive and forward applications for insurance carries with it the authority to receive the payment of the first premium, to be returned if the application is rejected. The tendency of modern decisions is to extend the power of insurance agents as to all they may do touching the contract, on the ground that public policy and the safety of the people require that the insurance company should be liable for such acts as appear on their face to be usual and proper in and about the business in which the agent is engaged. Ætna Co. v. Maguire, 51 Ill. 342; Ins. Co. v. Wilkerson, 13 Wall. 222. Anda larger power must necessarily be permitted to an agent in a distant place, who might lose insurance if he had to pause at every step, than might be essential to the efficiency of an agent residing near the home office. It is unnecessary, however, to pass upon any such question, because it is not properly in this case. The undisputed evidence is, that the agents of defendant had instructions, printed in their manual of
We see nothing in Butler v. Dovman (68 Mo. 298), cited by appellant, which conflicts with the views which we have expressed. That case holds that a mere broker of goods, not intrusted by the owner with the property itself, has not the indicia of authority to receive payment on taking an order for goods. A mere insurance broker, as such, would have no authority to receive a premium, but that is not the case before us.
Appellant’s counsel insist upon the non-appearance of any evidence that Gentry saw the written appointment of Byan as agent, or the instructions of the company to its agents. That seems to be quite immaterial. Gentry paid money to Byan as agent of defendant, which, if Byan had a right to receive it, Gentry has a right, by the terms of its payment, to recover back from defendant. If Byan was not the agent of defendant, or if he exceeded his powers in receiving this money, then, in the absence of ratification or estoppel, Gentry must take the consequence of his imprudence, and can not hold the company. But, if Byan was the agent of defendant, acting within the scope of his powers in receiving this money, or if, with the knowledge of the facts, defendant ratified the dealings of Byan with plaintiff whereby he held himself out to be the agent of defendant for the purpose of receiving applications for insurance outside of St. Louis, and forwarding them, then Byan was the agent of defendant for the purposes of this case, and it is quite immaterial whether plaintiff came to the
We think the judgment should be affirmed. It is so ordered.
