McCullough v. Hartford Fire Insurance

2 Pa. Super. 233 | Pa. Super. Ct. | 1896

Opinion by

Orlady, J.,

(after stating the facts as recited in the above statement of facts):

A vigorous defense was made by the company on the facts, but they were resolved against it by the jury returning a verdict in favor of the plaintiff for $865.06. This finding was accepted as conclusive ; no motion for a new trial was made, as the manifest weight of the evidence was with the plaintiff. There is no remedy in this court as to that phase of the case: Gates v. Watt, 127 Pa. 27.

The defendant’s first point (1st assignment) was, “Under all the evidence in the'case, the verdict should be for the defendant,” the answer being, “ we refuse this point as we have suN mitted it to you under all the evidence.”

The testimony adduced as to what occurred when the parties met was of the most conflicting character. The contradictions between the agent of the defendant and the plaintiff could only be adjusted by the jury: Springfield F. &. M. Ins. Co. v. Brown, 128 Pa. 392; O’Hara v. U. B. Mut. Aid Society, 134 Pa. 417; Curry v. Sun Fire Office, 155 Pa. 471.

Appellant’s third point (7th assignment) was, “ The receipt dated December 5, 1893, in evidence is not a contract of insurance,” and the answer, “We will answer that in the affirmative with this qualification: we do not say that the receipt of itself is sufficient to make a contract of insurance, but we say it is evidence of a contract of insurance, taken in connection with the testimony of the plaintiff, and you will consider the receipt and that evidence together with all the other evidence in the case.”

The contention of defendant was, first, that Jones as agent did not in fact renew the policy No. 1851, which fact as stated was found against the company; the second proposition was, that Jones as agent did not have authority to bind this principal in any other way than prescribed in the certificate of authority issued to him, that is, as stated by the court in the charge (2d assignment), “ The alleged renewal of December 5, 1893, did not renew the policy of November 19, 1892, because A. S. Jones, the agent, did not make out the said renewal receipt in the form required by the defendant company, and that it is not signed by the president, attested by the secretary and countersigned by the agent as required in the certificate of authority issued by the company. This Certificate of Authority reads as follows:

“Agency No. 1049. To A. S. Jones, Clarion, etc. This is to certify that the Hartford Fire Insurance Company reposing special trust and confidence in your ability and fidelity, . . . . doth hereby appoint you agent thereof for Clarion and its vicinity, .... with power to receive proposals for insurance, fix rates of premium, receive monies, countersign, issue and renew policies when duly signed by its president and attested by its secretary .... subject to the rules of the office and the instructions which you may from time to time receive therefrom. For directions in detail for your guidance in transacting the business of your agency, you are referred to the book of instructions furnished you by the company, which will govern you in all matters to which the same relates, .... Dated at Hartford, Connecticut, September 2, 1878. (Signed) Geo. L. Chase, President; J. D. Browne, Secretary.”

The company was incorporated in 1810, and its charter is perpetual. In regard to this certificate, the court say to the jury (3d assignment), “ It is your duty to take the construction of the court as to what the power is, and we think it is apparent that the agent had the authority to make a contract for insurance, that he had authority to make an agreement to renew the policy No. 1851.” And, “ We cannot agree with the contention of counsel for the defendant in their construction of this certificate and of the rules and instructions set forth in the book of printed instructions to A. S. Jones, their agent.” The policy No. 1851 expired by limitation of its term at noon November 19,1893; the receipt and plaintiff’s testimony claimed as evidence of the renewal for one year refer to transactions had on December 5, 1893. . We look-in vain in the policy No. 1851, held by the assured, for any reference to the book of instructions furnished the agent by the company, as determining the authority of the agent to renew a policy.

The extracts read in evidence by the defendant show them to be personal instructions to the agent for the management of the company’s affairs, and while binding between the parties advised of their conditions they could not affect third parties acting in good faith without notice. They could be changed from time to time as suggested therein and might be so varying and unstable as to make them utterly unreliable.

The question always is, not what power the agent does in fact possess, but what power the coippany held him out to the public as possessing: Independent B. & L. Assn. v. R. E. T. Co., 156 Pa. 181.

The powers of the agent are prima facie coextensive with the business intrusted to his care and will not be narrowed by limitations not communicated to the person with whom he deals: Adams Express Co. v. Schlessinger, 75 Pa. 246.

Policy No. 1851 is silent as to the manner in which a renewal is to be affected. It is not suggested anywhere that it is valid only where the signature of the executive officers are attached to a renewal receipt in a form furnished by the company and countersigned by the agent. It recites, — lines 49, 50, — “ This policy may by a renewal be continued under the original stipulations, in consideration of premium for the renewed term, provided that any increase of hazard must be made known to this company at the time of renewal or this policy shall be void,” but the forms or procedure to effect it are not suggested.

It is too late to say that a corporation can contract only by an instrument under its corporate seal. It has become a familiar principle that a corporation may, by the instrumentality of its agents, contract within the sphere of its functions pretty much as a natural person may: Hamilton v. Lycoming Ins. Co., 5 Pa. 339; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 471.

The certificate of authority was offered in evidence by the plaintiff without objection, as produced by the defendant on request. Its integrity was not questioned. There was no obscurity in its terms. No fraud, accident or mistake affected it. It was the agent’s authority to act for the defendant. Its construction was clearly for the court: Shafer v. Senseman, 125 Pa. 310; Palmer v. Farrell, 129 Pa. 162.

And the court was correct in the interpretation given, “ It is apparent that the agent had the authority to make an agreement to renew the policy No. 1851,” and that the rules and instructions set forth in the book of printed instructions to the agent were not a part of his authority to affect the plaintiff under the evidence in this case.

In Sheppard v. Peabody Ins. Co., 12 Ins. L. J. 817, the policy clause was, “ this insurance may be continued for such further time as shall be agreed on provided the premium is paid and endorsed on the policy or a receipt given for the same.” The receipt, “Received from John A. Sheppard, Admr. ten dollars, amount due on Peabody Insurance Policy, commenced September 3, 1874, till 3rd, 1875.” The bill of exception, “That the receipt of the 3rd day of September, 1874, which is for ten dollars exhibited to the jury, considered as a contract of insurance could not renew a policy which had expired on the 15th of August, 1874.” And the reviewing court say, “as this receipt was ambiguous, the court in construing its meaning or the jury if they acted upon it, would have had a right to look at the situation of the parties and the circumstances surrounding them when this receipt was executed to ascertain its meaning.”

Appellant urges (3d assignment) that the renewal of this policy, No. 1851, would only be operative when a renewal receipt in a form prepared by the company, and furnished the agent in blank, had been countersigned by the agent, after having been signed by the president and attested by the secretary, or in the words of the argument, “ to obtain a renewal and pay the premium for the renewal term.” “ A renewal was a receipt furnished by the company with the signature of the executive officers thereon to be countersigned when used by the agent.” The charge to the jury was in the light of the evidence.

The receipt of December 5, 1893, was (8th assignment) “ Objected to by defendant for the reason that the authority of A. S. Jones to make a receipt has notjoeen shown, the plaintiff having only shown a part of the instructions referred to in the paper (certificate of authority) and here produced upon notice from the plaintiff, have not been given in evidence.” This objection was overruled by the court and “ admitted for the present.” The book of instructions was offered by the defendant and received in evidence to show the agent’s authority from the principal’s standpoint, which removed the reason of the objection.

This receipt referred to the policy by its distinctive number. The agent testified that it was given at the request of the plaintiff and described the business in hand, “ It was a request for a renewal of a former policy and former amount that had expired in the month before, in November.”

It is not surprising the jury believed he intended by that writing to renew policy No. 1851. He kept the $5.00 until after the fire, without demand for the balance of the premium, or returning what he had. This conduct would induce plaintiff to believe he was protected and he so testified.

The agent was furnished with blank policies and renewal receipts containing the signature in stereotype of the president and secretary, but it cannot be contended that his power to bind the company was limited to their use.

After hearing the testimony of the parties to the controversy, the jury adopted the version of the plaintiff as true, which under the record in this case means, so far as renewal of policy No. 1851 was in issue, that, on December 5, 1898, all the necessary facts to support it had been alleged and proven by the plaintiff, and the minds of the parties met in believing that, “ tiffs policy was continued by a renewal under the original stipulations in consideration of premium for tbe renewed term, without any increase of hazard,” as provided for in the policy; the prepayment of the consideration for the renewed term had been waived, and that 15.00 was paid on account of the premium and the balance provided for in a way mutually satisfactory to the agent and insured: Elkins v. Susquehanna Fire Ins. Co., 113 Pa. 386; Farmers Mut. Ins. Co. v. Mylin, 2 Mona. 459.

It was an executed contract between the company and the plaintiff. The agent was authorized to accept payment of premiums, and could exercise his discretion as to the mode of payment: Lycoming Mut Fire Ins. Co. v. Bedford, 2 W. N. C. 529.

To adopt the argument of defendant’s counsel, would be practically to say that the attempt to renew would be futile if the agent did not have the proper blanks; the death of a president or secretary would make it impossible until the vacancy should be filled.

The disputed facts were fairly submitted with a proper interpretation of the law.

The several assignments of error are dismissed and the judgment is affirmed.