216 A.D. 654 | N.Y. App. Div. | 1926
The defendant association is a co-operative insurance corporation organized under article 9 of the Insurance Law. On May 17, 1922, it issued to one Walla and wife a fire insurance policy covering certain buildings and personal property located on a farm in the town of Boston, Erie county, N. Y. The date of expiration was May 11, 1927. The policy was held by the Bank of Hamburg as first mortgagee. On October 17, 1922, Walla and wife sold and transferred the farm and personal property to plaintiffs, taking a second mortgage on the farm and a chattel mortgage on the personal property as security for part of the purchase price. The interest of the Wallas in the insurance policy was also transferred as part of the transaction. The property was destroyed by fire on September 27, 1923. The defendant association denies liability upon the ground that no notice of the change of ownership and of the additional incumbrances was ever given to it; that no agreement recognizing such changes and additions was ever indorsed on the policy; and that plaintiffs never complied with the provisions of the insurance contract relating to a transfer of membership and insurance.
The policy complied with the requirements of the then existent
The by-laws also provide that a resident agent or collector, the office to be held by one person, who must be a member, may be appointed for each town in which as many as twenty-five members are insured. Such resident agent is entitled to receive the membership fees from new members and the fees paid by members for change of insurance, as mentioned above. The by-laws throw little light on the duties and authority of a resident agent. Reading them in connection with the testimony, however, it appears that he took applications for membership and insurance, both original and on transfer, collecting the appropriate fees, and sent them to the home office for the action of the executive committee. In the case of transfers he also procured and' sent along the policy with the application. He kept on hand application blanks which were furnished by the home office. He also collected assessments as they were levied and whenever his collections amounted to $200, he remitted to the home office. It seems also to have been part of his duties to appraise the properties when applications were made.
The resident agent in the town of Boston was one Dye. There is evidence tending to show that on November 8, 1922, Glogowski,
The complaint alleged that Dye was a general agent authorized to receive applications, to issue policies, to continue policies in force, to make all proper indorsements thereon upon the transfer of title and generally to perform all and every act and thing which a general agent might or could perform; and in substance that Dye’s promise to get the policy and have the proper indorsements made thereon was the promise of the defendant association.
The trial judge sent the case to. the jury on that theory, expressly charging that there was no proof that the plaintiffs ever signed a membership application. The theory that Dye, as an agent of limited authority, took an application from plaintiffs, and that, pending the action of the executive committee thereon, and until notice of modification or rejection, the property under the provisions of the by-laws was held insured, was either not advanced at the trial or was rejected.
The sole question, then, is whether, under all the evidence, Dye’s authority was so broad as to make his act the act of the defendant association. The terms “ general agent,” “ special agent ” and their variants are commonly used for convenience but are of vague content. The extent of an agent’s authority is not determined from his title alone. The question is always whether the particular act of the agent is within the scope of his actual or apparent authority, or, as it has been stated, “ whether the third party had reasonable grounds for believing, under all the facts of the case, that the principal had authorized the act.” (Vance on Insurance, 306.) The policy contained the usual provision against waiver by any officer or agent except in writing indorsed upon or attached thereto. But that is not conclusive. The question still remains one as to the extent of authority. (Smaldone v. Ins. Co.
The verdict is contrary to the evidence on the question of authority. The judgment and order should be reversed on the facts and a new trial granted, with costs to the appellant to abide the event.
Hubbs, P. J., Clark, Davis and Taylor, JJ., concur.
Judgment, amended judgment and order reversed on the facts and a new trial granted, with costs to appellant to abide event.
Since amd. by Laws of 1924, chap. 538.— [Rep.