178 A. 1 | Pa. | 1935
These appeals are from the refusal to take off nonsuits. Each action was on a policy of fire insurance on contents of an industrial plant. The defense was that the policies had been surrendered and cancelled and were not effective when the fire occurred. Decision turns on whether plaintiff's insurance broker, who obtained the policies for plaintiff and who held them, was authorized to surrender them. The authority was denied by plaintiff and asserted by defendant. The learned court below was of opinion that the uncontradicted evidence disclosed that the agent acted within the scope of his authority in returning the policies to the company's agent and that, as there was no insurance at the time of the fire, the plaintiff could not recover.
Lare and Company was an insurance broker and "since the inception of the LaFrance Co." had acted in that capacity for it. Mr. Lare, who attended to plaintiff's insurance, testified at length on the subject. He stated that, constantly since August, 1929, he had acted for plaintiff in and about placing fire, automobile and compensation insurance. He appears to have kept a record of plaintiff's insurance. "As the insurance lapsed, the kind that could be renewed, . . . [he] . . . would renew it without consulting them, and if they did not want it, they sent it back." He selected the companies and determined "what company should cover the plaintiff" *193 and the plaintiff had nothing to do with that. Lare negotiated with the companies "and got as much as they were willing" to insure. He prepared the "form" to be added to the policies, specifying "the coverage of the risk, the amount applicable and the various qualifying clauses in relation to the general terms of the policy." The plaintiff, he said, "did not know anything about insurance forms" and had nothing to do with their preparation. During the period of his agency he had received notices of cancellation and, if unable to "convince the company to stay on the risk, . . . replaced it." If, in such case, he "obtained a new contract, [he] delivered it to . . . [plaintiff] . . . picked up the old contract and returned the old contract to the company."
With that description of the broker's activity over a period of years, we come to the policies in suit. Lare determined that insurance in the sum of $75,000 (overruling plaintiff's suggestion that $50,000 should be taken) should be placed on the contents, selected the companies, negotiated with the writing agents as to the amount to be underwritten by each company, and prepared the "form." But, more than that, he recommended that plaintiff make "improvements to the buildings," for the purpose, if made, of obtaining a lower rate than would otherwise apply. He testified that he "placed" the insurance September 23d and 24, 1930, and received the policies in November, and held them "for a correction of the rate." The rate, as we understand the record, would depend on plaintiff's making the changes and improvements suggested by the broker; unless made, the policy rate would not apply. Meanwhile, the policies were held "in violation," that is, awaiting rate approval by the rating bureau.* *194
The policies were written by William C. O'Neill Sons, writing agents, and, subject as stated above, were put into the custody of Lare and Company, plaintiff's broker, and were charged to that broker, who maintained a credit account with the writing agents. Plaintiff was advised by Lare of his possession of the policies. Lare and Company maintained a running account with plaintiff. The writing agents demanded payment of the premiums and Lare and Company put off payment until, finally, they informed the agents, as Lare testified, "that if we had not received [from plaintiff] moneys by a certain date, we would either pay them the premium or return them the policies" and fixed February 20, 1931, as the date for the return. Lare also testified that he told the plaintiff "on several occasions that we would have to get some money or the policies would be cancelled," and that, prior to fixing February 20th as the limit, "we had several limits with the" plaintiff "as to these policies." "Q. You told them [plaintiff] that if they did not pay within a certain time you would cancel the policies? A. Yes."
Not receiving payment of premiums from plaintiff, the broker on February 21, 1931, returned the policies to the writing agents for cancellation.
The evidence generally outlined above, and put into the case by plaintiff, clearly shows that Lare and Company was plaintiff's general agent within the accepted definition of that relationship. The Superior Court (La-France Lamp. Co. v. Fire Assn. of Phila.,
In appellant's argument it is suggested that, as the policies contained a provision for cancellation "at any time by the company, by giving to the insured a five days' written notice of cancellation . . ." etc., and, as no notice was given by the companies direct to the plaintiff, the policies were nevertheless in force. The contention *196
must be rejected. For the purposes of this insurance, plaintiff and Lare and Company were one; the authority conferred on Lare and Company, so far as the insurance companies are concerned with it, was sufficient to justify the companies (cf. Lauer Brewing Co. v. Schmidt,
But, properly considered, the action of the companies was not under the cancellation clause quoted. The parties were competent to cancel their contract by agreement at any time. See Scheel v. German-American Ins. Co.,
Assuming that these policies were in force so long as the writing agents were willing to extend credit to Lare (Essington Enamel Co. v. Ins. Co.,
The other assignments of error are framed in such disregard of our rules that they must be dismissed, though, it may be added, we see no merit in them.
In each of the appeals, numbers 405, 406, 407, 408, 409, 410, 411 and 412, January Term, 1934, the judgment is affirmed.