Lycoming Fire Insurance v. Wright, 60 Vt. 515

Lycoming Fire Insurance v. Wright

60 Vt. 515 | Vt. | 1888

The opinion of the court was delivered by

Taft, J.

Before an insurance company located in a sister state can make a valid contract of insurance in this State, it must obtain from the secretary of state a license for that purpose, and it must be responsible by the laws of the state in which it is situated, or by its act of incorporation, or by contract in its policies, for the acts and neglects of its agents, as between the company and the assured and applicants for insurance. R. L. ss. 3610, 3618; 55 Vt. 526. Before receiving such license the company must file with the secretary of state a certified copy of its charter and by-laws, and a statement of its financial condition. R. L. s. 3610. Three questions are presented by the brief for the defendants.

I. Was parol evidence admissible to show the issuing of the license to the plaintiff. The loss of the license was shown. There was no law requiring a license to be recorded, or requiring the fact that one had been issued to be recorded; it was therefore competent to show the fact by parol.

II. The court found upon trial that a license had been issued to the plaintiff, and that prior thereto a copy of its charter with its financial statement was properly filed, but was unable to find that a copy of the by-laws had been filed with the secretary of state. It was obligatory upon the plaintiff before it was entitled to a license to file a copy of its by-laws. The license was issued. What the effect would be in case the fact was found that no copy of the by-laws was filed, we are not called upon to decide. It does not appear but that a copy was filed, and in the absence of all showing that it was not, we think the case calls for the application of the rule that acts which purport to have been done by public officers in their official capacity, and within the scope of their duty, will be *522presumed to. have been regular and in accordance with their authority. He who alleges that an officer intrusted with an important duty has violated his instructions must show it. 2 Best on Evidence, Morgan’s ed. 622, note 1; Ross v. Read, 1 Wheat. 482; Delassus v. The United States, 9 Pet. 117; R. R. Co. v. Stimpson, 14 Pet. 448. In Waddington v. Roberts, L. R. 3 Q. B. 579, an action to recover under a deed of composition, a question arose under the Bankruptcy Act .24 and 25 Yict. chap. 134. The deed under that act could not be lawfully registered unless accompanied by a prescribed affidavit. The objection was made that no proof was given that the affidavit which the statute required was filed; but the court said it would “be presumed until the contrary was shown that a public officer acting in execution of a public trust would do his duty, and therefore that the registrar would not have registered the deed unless it was accompanied by the necessary affidavitand see Grindell v. Brendon, 6 C. B. N. S. 698. In Missouri a foreign insurance company is prohibited from carrying on business until it has filed with the insurance commissioner a certificate stipulating that service may be made upon him; and where it is alleged in the petition that a foreign company is doing business in the state, it will b& presumed that it has complied with the law; Knapp v. Ins. Co. U. S. Cir. Ct. E. D. Missouri, Brewer, J., 16 Ins. Law Journal, 798, Sept. 1887. It has been held in this State that a public officer, acting under the provisions of a statute, is presumed to have performed his duty until the contrary appears. U. B. Bank v. Tucker, 7 Vt. 134; Chandler v. Spear, 22 Vt. 388. To sustain this objection would require us to presume that the secretary of state was guilty of a gross violation of his duty. In the absence of all showing the presumption is that he did his duty, and that prior to issuing the license the by-laws had been filed in his office. ■

III. Was the plaintiff responsible by the laws of Pennsylvania, between it and the assured and applicants for insurance, for the acts and neglects of its agents ? What the law of the *523state was, was a question of fact for the County Court to pass upon. It did so by finding that the law was as reported in certain cases in the Supreme Court Reports of that state, which are .referred to as a part of the exceptions. The cases show that the plaintiff was liable for their agents’ acts and neglects, between it and persons doing business with it. In Columbia Ins. Co. v. Cooper, 50 Pa. St. 331, the court say, in speaking of the relations between the company and its agent, that if the assured “ has been guilty of no misrepresentation, concealment or fraud, the company had better pay his loss than to attempt to make him responsible for the blunders of their own agent.” In Lycoming Fire Ins. Co. v. Woodworth, 83 Pa. St. 223, the main point relied upon by the company to defeat the action was that the agent was not authorized to make the representations which induced the execution of the premium note ; and the court held that the company was bound by the representations of its agent in the act of making the contract. It is insisted that this liability must be one created by statute.. Although the words “ laws of a state” are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, as stated by Story, J., in Swift v. Tyson, 16 Pet. 1, 18, we think in the present instance that such could not have been the intent of the legislature, nor the meaning of the statute. The act prohibiting the contract unless the company was responsible, by the laws of the state where it was located', for the acts and neglects of its agents, was originally passed as No. 47, 1850, and applied as well to domestic as foreign companies. It is declaratory of the common law, which made a principal responsible for the acts and neglects of his agents within the scope of his authority. It is argued that the statute means more than the common law; for if not, why pass it? Its object undoubtedly was to prevent companies from attempting to abrogate the. common law by inserting a clause-in their policies or by-laws that an agent, taking an application for insurance, should be deemed the agent of the assui’od and not of the company. This practice, *524which was common at that time, was the evil to be remedied, and it mattered little to the assured whether the liability of the company was created by statute or whether it was a common law obligation resting upon it; in either case the rights of the assured were protected in that respect.

Judgment affirmed.