131 Minn. 147 | Minn. | 1915
Plaintiff alleged that on August 25, 1913, Izer H. Hertz applied to defendant, a life insurance company, to insure his life in the sum of $5,-000, the annual premium to be $426.45; that, after a medical examination, the application was accepted and the premium paid upon the express agreement that the insurance should be in force from said date, and that the usual form of policy should be issued and delivered wherein the said amount, upon the death of the insured, should become due and payable to his son, the plaintiff; and that Izer H. Hertz died August 28, 1913. The answer denied the making of any contract to insure, and alleged that Izer H. Hertz, on the date mentioned, signed an application for insurance in defendant company wherein he agreed, among other
Among the findings of fact are these which are of decisive import: That the person who solicited Hertz to insure was the duly appointed soliciting agent of defendant, expressly empowered to act as defendant’s agent, for the purpose of procuring and effecting applications for insurance on the lives of individuals that shall be satisfactory to the company, and to collect in advance the first annual premium to be charged for any policy applied for at the time he took the application, but conditionally, to be returned in case the application was rejected by defendant, and kept in case the application was approved. That the application signed by Hertz was forwarded to defendant’s home office in Binghampton, New York, where it arrived shortly prior to September 2, 1913, but, on that day, before any action was taken thereon, defendant was advised that Hertz died August 28 or 29, and hence refused to consider the same; that the check for the first premium received by the agent from plaintiff herein was returned by the agent at about the time of applicant’s death; and that the agent of the defendant, who solicited Izer H. Hertz’ application, had no authority either actual or apparent, to enter into a contract of insurance for said defendant, or to pass upon or finally accept applications for insurance for defendant. The agent referred to is the only one who, according to plaintiff, participated in the transaction with Izer H. Hertz. If this agent had no authority to make the alleged contract there is no cause of action, for before the written application reached the officials of the company who had authority to pass upon its acceptance or rejection there was no risk to insure.
Clearly the agent had no express authority to make life insurance contracts in behalf of defendant. We do not understand that counsel claims
In Morse v. St. Paul F. & M. Ins. Co. 21 Minn. 407, it was held that the fact that a soliciting agent was authorized to receive applications for insurance to be forwarded for the approval or rejection of the company and also to collect premiums, was not in itself sufficient indication of authority in the agent to enter a contract of insurance. Counsel frankly concedes that if this rule is applied to the instant case it leads to an affirmance. But he contends that the decision is wrong, and that the trend at the present time is to hold insurance companies bound to any contract of insurance which an agent of theirs may make, although his employment be limited to merely soliciting applications for insurance. We need not here determine whether there has been any departure from the rule of the Morse case, for the difference in the methods employed in procuring fire insurance risks from the ones used in effecting life insurance contracts, and the necessity for different methods, suggests cogent reasons for holding that apparent authority is much more readily to be inferred in the case of a soliciting agent of fire insurance than in one of life. In either case, where the agent’s power is expressly limited, apparent authority to do acts beyond the limitation should not be found unless clearly to be inferred. Kerr, Insurance, p. 52; May, Insurance (4th ed.) pp. 236, 237; Armstrong v. State Ins. Co. 61 Iowa, 212, 16 N. W. 94.
Without discussing each case cited by appellant, we may say that the ones relating to fire insurance where a finding or verdict established apparent authority in an agent upon evidence showing the mode of doing business by the insurer, or by such insurers generally, can have very little weight as precedents here where the finding is that the agent had no apparent authority, and there is no testimony from which the contrary could be inferred. Such are the cases of Ellis v. Albany City Fire Ins. Co. 50 N. Y. 402, 10 Am. Rep. 495; Post v. Aetna Ins. Co. 43 Barb. 351, 361. Nor can aid be had from cases involving collection of premiums by agent wherein the authority in this state is governed by statute. G. S. 1913, § 3607; Kilborn v. Prudential Ins. Co. 99 Minn. 176, 108 N. W. 861. The case of Sheldon v. Connecticut Mut. Life Ins. Co. 25 Conn. 207, 65 Am. Dec. 565, depended upon whether there had
It is plain that section 3485, G. S. 1913, has no bearing in this case. It was enacted solely for the purpose of preventing a life insurance company from contending that, in controversies upon the policy issued by it, the agent who solicited the application for the insurance was the agent of the insured.
We cannot disturb the finding that defendant’s agent who solicited Izer H. Hertz to sign the application for insurance had neither express