International Paper Co. v. General Fire Assur. Co., 263 F. 363

International Paper Co. v. General Fire Assur. Co.

263 F. 363 | 2d Cir. | 1920

HOUGH, Circuit Judge (after stating the facts as above).

[1] An insurance broker, like other brokers, is primarily the agent of the first person who employs him, and is therefore ordinarily the agent of the insured.

[2] An insurance agent, however, within the scope of his actual .authority, and whether in trade parlance given the description gen*365eral, special, issuing, local, or soliciting, is the agent of the insurer. With the tangled and dubious question of acts within what has been called such agents’ apparent authority, we are not now concerned. Cf. Mechem Agency (3d Ed.) § 1049. A policy once issued is a written contract, to be interpreted in a federal court as required by Northern, etc., Co. v. Grand View, etc., Ass’n, 183 U. S. 308, 349, 22 Sup. Ct. 133, 46 L. Ed. 213, limiting Insurance Co. v. Wilkinson, 13 Wall. 222, 20 L. Ed. 617.

[3] In the affair now before us, the insured undoubtedly employed Barton first; but he was both an insurance agent and an insurance broker, as we are assured by his own evidence. It is not impossible for a man so to do business (Mannheim, etc., Co. v. Hollander [D. C.] 112 Fed. 551), and function at different times in both capacities. It is the question in this case, In what capacity was Barton acting when he asked James to issue the policies in suit? And most of plaintiff’s exceptions rest on the belief that as matter of law he was defendant’s agent, and the court should have so directed the jury.

[4] This can only be true if there was no “evidence before the jury ■ — whether it be weak or strong — which does so much as tend to prove the issue on the part of” the side against which such direction is given. Hickman v. Jones, 9 Wall. 197, 19 L. Ed. 551.

[5] Assuredly that is not true in this case; and it is sufficient to refer to Hough v. City, etc., Co., 29 Conn. 10, 76 Am. Dec. 581, cited with apparent approval in Northern Assur. Co. v. Grand View Bldg. Ass’n, 183 U. S. 324, 22 Sup. Ct. 133, 46 L. Ed. 213, for an illustration of a jury issue far less obvious than the present. A similar course was pursued in Mohr v. Insurance Co. (C. C.) 13 Fed. 74, and Queen, etc., Co. v. Union Bank, 111 Fed. 697, 49 C. C. A. 555, where the insured applied “to persons known to have authority * * * to issue policies of insurance,” something' weighing far more heavily against the insurer than anything shown here, for that Barton had np right whatever to issue a policy on goods in Vermont is admitted. The error of plaintiff’s argument is in assuming that an agent for one purpose, must be an agent for another; he may be, or the principal may be estopped from asserting the contrary; and it is the possibility that carries the issue to the jury. Whether under all the evidence herein, a verdict for the plaintiff could have been sustained, is not before us, and no opinion is expressed.

[6] Plaintiff complains, further, that it was not permitted to put in evidence certain formal .papers filed in a public office in Massachusetts and showing Barton’s agency. But Barton had already testified to his agency, its nature and extent, and those papers added nothing thereto. It is a mistake to suppose that, when a thing is proved, either party has a legal right to prove it over again in a way he likes better. At the most, the matter is one for the discretion of the trial judge.

[7] Again complaint is made (in substance) that defendant was permitted to show by Barton’s own testimony that he was plaintiff’s broker or agent. This is argued under cover of authorities holding that- agency cannot be proved by the “acts and declarations” of the *366alleged agent — a proposition not doubted. Baldwin v. Connecticut, etc., Co., 182 Mass. 389, 65 N. E. 837. But here we have Barton’s evidence, and that an agent can testify to his own agency is certainly true. Livingston v. Swanwick, 2 Dall. 300, Fed. Cas. No. 8,419.

We do not think it necessary to discuss the remaining assignments of error.

Judgment affirmed, with costs.