Opinion op the Court by
-Reversing.
Bert Martin instituted an action against the Provident Life & Aсcident Insurance Company to recover $2,000 upon an accident insurance policy for the loss of his foot. The defendant admitted liability for $1,002.20, but sought to avoid further liability under a provision of the policy which reduced the indemnity if the insured obtained similar insurance in another company without giving written notice thereof to the defendant. The insurance in that event was limited to such portion of the indemnity promised as it bore to the total amount of insurance carried, and for a return of such part of the premium paid as exceeded the proper amount due for the reduced indemnity. It was alleged in the answer that Martin had procured another accident policy for like amоunt without giving written notice to the defendant *669 company which operated to reduce the insurance under the present policy to $1,000. The sum of $2.20 was the excess of premium collected and which was to be returned. The company by its answer admitted liability for $1,002.20. By the reply an estoppel was interposed, in substance, that Martin had informed the general agent of the defendant company of the additional insurance, who had agreed to notify the comрany, and, relying upon that agreement with the agent, Martin had not given the written notice required by the conditions contained in the policy. In avoidance of the matters of estoppel pleaded, the company set up сertain standard terms of the policy by which the authority of the agent was restricted. One provision was that no agent had any authority to change the policy, or to waive any of its stipulations. The other pleadings filed require no special mention. The case was tried before a jury, and, at the conclusion of the plaintiff’s evidence, a peremptory instruction was given to find a verdict for the defendant. The plaintiff has prosecuted an appеal from .the judgment dismissing his action.
It is not disputed that a provision of the policy required notice in writing of any additional insurance, and, if not given, the amount of insurance was reduced proportionately to the total insurance carried. It is admitted that no written notice was given. But’ it is argued that the insurance company was estopped to invoke that defense. Assuming, without deciding, that the agent in question was authorized to represent the company in the matter of wаiving the written notice, we proceed at once to a consideration of the evidence.
The testimony of the plaintiff did not sustain the •broad allegations of his pleadings. He testified that before obtaining the additional insurance he discussed the matter with the local agent who advised him to notify the company in which he proposed to take additional insurance, and, if it accepted the application, to advise him and he would notify his comрany “if he thought it was necessary.” The statement is repeated several times that the agent said he would notify his company if he • thought it was necessary. Martin testified further that, if he had not been so advised by the agent, he would have dropрed the additional policy. Martin did not state that he was prevented from giving the written notice required by the policy, but he left the matter entirely to the judg
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ment of the agent. Martin was aware of the provision in the policy which required him to give written notice if he
took
out additional insurance. He had read his policy and was familiar with its terms. He testified that he had read enough of his contract to know what it required respecting additional insurance and he deemed it sufficient simрly to advise the agent. It does not appear that the agent advised the company, or that he made any promise in respect to the matter. He was the agent of the company for the purpose of taking aрplications for insurance, which were mailed to the home office in Chattanooga, Tenn. The policy sued upon was mailed to Martin. In view of the equivocal statements attributed to the agent, Martin was not justified in assuming that the prоvision of his policy respecting written notice of additional insurance had been waived. South v. Phila. F. & M. Ins. Co.,
The point is made that the agent was informed of the additional insurance, and the company still continued to collect premiums on the face of the policy. The principle that knowledge of the agent is knowledge of the company is invoked, and such conduct of the company after the agent was advised of the fact that additional insuranсe had been taken is sought to be made the predicate of a waiver by the company, or of an estoppel against it. The priciples stated may be conceded. Niagara Fire Ins. Co. v. Johnson,
It is a general rule of the law of agency that a principal is affected with constructive knowledge, re
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gardless of Ms actual knowledge, of all material facts of wliicli the agent receives notice or acquired knowledge wMle acting in the course of Ms employment and witMn the apparent scope of Ms authority, even though the agent may fail to inform his principal thereof; 2 0. J., sec. 542, p. 859. The rule is not applicable, however, unless the notice has referеnce to the 'business in which the agent is engaged under authority from the principal, and is pertinent to matters coming within the purview of such authority, 2 C. J., sec. 544, p. 863; Levi v. Gonzenbach,
But even in those cases the fiction of legal idеntity prevails only while the agent is acting for his principal and within the apparent scope of his authority as agent.
When the circumstances are such as to raise a clear presumption that the agent will not transmit his knowledge to his principal, the rule that notice to the agent binds the principal does not apply. 2 C. J., sec. 549, p. 868; Sebald v. Citizens Dep. Bank,
Of course, if the party dealing with the agent is not advised of the circumstances that render inappliсable the usual presumption which attributes to the principal the knowledge of the agent respecting matters involved in the business in hand, he is unaffected by such circumstances. Armstrong v. Ashley,
Hence, the circuit court did not err in ruling that recovery on the policy under the proof was limited to that “portion of the indemnity promised as such indemnity bore to the total amount of like indemnity in all policies covering such loss, and for a return of such part of the premium paid as exceeded the pro rata for the indemnity thus determined.”
But the court erred in directing a verdict for the defendant. It was admitted in the answer that the defendant was liable for $1,002.20 and the court should have rendered judgment for that amount with interest from the- time it was due. The Civil Code of Practice, sec. 380, provides: “If only a part of a clаim be controverted, judgment may at any time be rendered for the part not controverted. ’ ’ A party is entitled to judgment
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for the uncontested amount of his claim, without precluding himself from prosecuting his action to recover the resideue claimed, Maxwell v. Dudley,
It was the duty of the court, as a matter of law, to render judgment for the plaintiff for the amount admitted by the answer to be due. Such right was not affected by the offer of the defendant to confess judgment. That offer was conditioned on its acceptance by the plaintiff in full of his demands. An offer to confess judgment under section 640 of the Civil Code of Practice is designed to end the litigation. Such an offer, if refused, does not defeat the right of the defendant to contest the entire claim, and is not admissible in evidence against the party who makes it. If the offer is declined, and a greater sum is not recovered, the plaintiff is denied a recovery of costs accruing after the offer is made. Evans v. Chapel,
But that offer did not affect or change the character of the pleadings, and admissions there made are the appropriate basis of a judgment of the court. The plaintiff’s petition was filed April 10, 1930. It contained a prayer for interest frоm the date of the accident, but the date was not stated in the pleading. No other allegation was made as to when the payment was due. Hence the plaintiff was entitled to interest from the date of the filing of his petition. Fidelity & Dep. Co. v. Husbands,
It is suggested by the appellee that this case is governed by the decision in Standard Accident Insurance
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Co. v. Bailey,
The judgment is reversed, with directions to render judgment -in favor of plaintiff in accordance with this opinion.