54 W. Va. 344 | W. Va. | 1903
Lead Opinion
J. B. Lavender agent for the Fireman’s Insurance Co. of Baltimore, at the town of Hinton, issued to James -II. Miller, its insurance policy for the sum of one thousand dollars insuring said Miller against loss by fire on certain books and office furniture in Iris law office in said town of Hinton for the period of three years, for which the premium was fully paid to said Lanvender. On December 19, 1900, J. B. Lavender went to
Thereupon said policy was delivered by said J. B. Lavender to IT. 0. Michaels, special agent of said insurance company, who was in the town for the purpose of taking up and canceling policies, which fact was told Miller; and said policy was thereupon canceled and destroyed by said company)-, and said Lavender given credit for the proper amount of return premium.
Afterwards, on the 3rd day of September, 1901, the property which had been embraced in said policy was destroyed by lux; and then Miller enquired of said Lavender if he had ever issued him any new insurance upon said property; and finding that he had not, set About to make proofs of loss under the destroyed policy in defendant company, and on the 9th day of November, 1902, instituted action in the circuit court of Summers county, wherein a judgment was rendered in favor of plaintiff, Miller, for the sum of $925.00, from which this writ of error is prosecuted.
There is but one contention of importance in the case, and that is as to whether or not the policy'sued upon had, prior to the loss complained of, been canceled.
It is contended by the defendant that the surrender of the policy to Lavender amounted to an agreement to surrender the policy for cancellation and constituted a waiver on the part of the insured to have the notice given him which was provided in the policy, and the payment to him of the return premium as provided for therein.
On the other hand, it is contended by plaintiff that the circumstances under which said policy was returned through Lavender to the company, for cancellation amounted to nothing more than a conditional surrender; and that the condition upon which the surrender was made was not complied with prior to the time of the loss. Lavender was agent for several companies. Miller’s statement in evidence is: “One evening Mr. Lavender came into the office, and told me that the company was going
The policy gave the company right to cancel on notice. Miller waived notice, assented to cancellation, asked no notice and gave up the policy with final intent, because he knew that the local agent received it for the very purpose of delivering it as a surrendered policy to the general agent then in the town to take up policies. It could be canceled by consent without notice. See Ins. Co. v. Johnson, 105 Fed. 286. To show further that Miller considered it a cancellation, ho lay nine months without mention of any condition as annexed to the cancellation to the company, so that it might take steps to protect itself, and never inquired of the agent for a policy in another company. Strange that he should thus be silent so long, if he had made only a conditional surrender. “Acts speak louder than words.” Miller claims that he surrendered the policy with the condition that Lavender should procure him a policy in another company; but he knew that while Lavender had authority to cancel, he had no color of authority to make a conditional cancellation, one leaving the company still liable He had either to surrender or not surrender the policy; he could not make a surrender upon such condition; as he surrendered, it was a surrender freed of condition. Dealing with an agent, he was bound to know his limited authority. Otherwise who would be safe from an agent’s unauthorized act ? In making such a condition (it was not such) the agent would be acting to the harm of the principal. Apply here the rule in Rohrbough v. Express Co., 50 W. Va. 149, section 6, and we find that he could not do so, and that Miller was bound to know this. “The powers of an agent must be exercised for the benefit of his principal only, and when he acts otherwise, with the knowledge and participation of the person relying upon his unauthorized act, his principal is not bound.” What benefit did the company get from this condition? It was to its harm, because it kept the company still bound. The sufficient answer to this theory of conditional surrender is, that the parties could not make such a condition. That condition would be a. contract, which the agent had no right to malee.
Estoppel. Can Miller allow the company to rest in confidence for nine months, the policy all the time in its possession, having allowed the agent money to return the premium, and then for the first time after the fire set up a claim ?
It was error to allow Miller to say he dealt with Lavender as defendant’s agent as to the new insurance, giving his mere opinion of his own action.
Tinder these principles instruction 1, that the acts of an in
The plaintiffs instruction 2 is bad, because il tells the jury that the policy could not be canceled ■ without mutual consent, unless the right be reserved, in it to cancel, and if reserved could only be done according to its terms, which must be strictly complied with, unless waived, and if waived on a condition, that condition must be complied with. There is a power of cancellation in the policy. The instruction misleads by saying the terms of cancellation must be complied with, intending to rely on want of notice, when the evidence clearly showed waiver and consent cancellation; and it introduced the so-called condition into the case,, as it could refer to no other condition than that, when in fact there was no condition, and if there had been one between Miller and Lavander, it would not bind the company. The instruction did not fit the case as presented by the evidence in law or fact, and was misleading. Wo. 3, is bad for substantially similar reasous. It also said there must be return of the premium when the evidence showed that Miller left it in the hands of Lavender to buy insurance in another company. It rvas an arrangement between them. Wo. 4, is bad for similar reasons. It was also misleading. The evidence did not warrant it. I think these instructions contain elements inconsistent with defendant’s instruction given.
The court refused defendant its instruction 1 to the effect that if Lavender applied to Miller to deliver him the policy, telling Miller that he had been instructed by the company to take up the policy, and that Lavender rvas agent for other companies, and Miller knew he was, and Lavender said he would write Miller insurance in place of this policy, in another company and Miller delivered to Lavender the policy in suit, then the delivery of the policy to be taken up by the company, and the delivery of the policy under such circumstances was a waiver of the clause providing for five days’ notice of surrender and payment of return premium. Uudor principles above stated this instruction should have been given.
The court refused defendant’s instruction 4, to the effect that if the agent Michaels directed Lavender to cancel the policy, and Lavender applied to Miller for the surrender of the policy for cancellation, and that Lavender was agent for other companies and that Miller knew this, and Lavender stated that he would write Miller insurance in lieu of the policy in suit in another company represented by him without further cost, and then Miller surrendered the policy and relied on Lavender to write him insurance in another company, and made no further inquiry of Lavender as to whether such other policy had been issued, and demanded no such policy prior to the fire, and after the fire did inquire of Lavender whether he had issued such new policy, and searched himself for such policy, but found none, then Miller was estopped to deny that he surrendered the policy in suit and the same was canceled before the fire. This instruction ought to have been given. Is it possible that Miller could, when told by the company that it desired the surrender of the policy for the very purpose of cancellation, waive notice by not demanding it, surrender the policy, agree to look for insurance through his agent chosen to secure such new insurance, knowing that the company had possession of the policy and regarded it as surrendered for cancellation, and negligently rest for months without a hint of dissatisfaction to the company, and thus lull it into a feeling of security, and after the fire, for the first time, seek to put the loss upon the company? Would not this action and negligence on his part estop him from doing so ? Why did he not let the company know that he deemed the policy still in force, and thus enable it to give notice of cancellation ? The strong fact to show that Miller himself regarded the policy as canceled is that after the fire he went to Lavender
Judgment reversed, verdict set aside, and new trial granted.
Bevarsied.
Dissenting Opinion
(dissenting.):
In Judge Brannon’s opinion, he relies almost wholly on the claim that the defendant’s agent had become the plaintiff’s agent to secure him other insurance. He rejects plaintiff’s evidence entirely on this question, and attempts to infer such agency from the declarations of the plaintiff’s agent, whose testimony on the point is as follows: “I stepped into Mr. Miller’s office and asked him for the polic}^ told him that the company had requested me to take it up, told him I w'ould give him another policj1, or write, him in another company as good, and it would not cost him any more.” He made the promise of a new policy before he received the old one, the plain object being to prevent the return of the premium. He neither returned the premium nor requested the plaintiff to sign the cancellation form on the back thereof. He was acting as agent for the defendant. He induced the surrender of the policy without repayment of the premium or cancellation on the false promise of a new policy. Where does the plaintiff’s agency come in ? Docs the deception practised by the defendant’s agent with its presumed knowledge transfer such agent from the defendant to the plaintiff, and at the same time authorize the defendant to keep the premium contrary to the stipulations of its policy? The insurance defendant is undoubtedly bound by the misrepresentations of its agent, made to secure the policy without compliance with the terms thereof, or
Because defendant’s agent did induce plaintiff to turn over the policy to him without refunding the premium, by falsely promising to furnish him another, in lieu thereof, there is no reason why he should be treated as plaintiff’s agent. To accomplish this, not only must the agent’s evidence be strained, but plaintiff’s evidence must be rejected altogether. Plaintiff has a right to deny such agency, and also to testify against the same. There is nothing to work an estoppel against him. He has the right to say how he dealt with the defendant’s agent, and to deny that he gave any commission to him to act in his behalf, and also to say what induced him to surrender the policy contrary to its terms. He has the right to give his understanding of the transaction, and if he is contradicted, it is for the jury to say whether they believe him or not. The court has ho just right to reject his testimony, and then infer from circumstances that do not justify it that plaintiff adopted the defendant’s agent as his agent. The fact that the defendant is an insurance com-¡jany does not justify a departure from the ordinary rule governing similar cases. On the question of the necessity of the return of the premium, the rule is stated to be that as a condition precedenttothecancellationofthe policy in addition to giving the necessary notice, the insuier must return or tender the unearned premium. But where the policy does not require the prepayment of the unearned premium, it is but an incident not effecting the main object, and therefore it is not prerequisite. 16 Am. & En En. Law (2 Ed) 875; Southern Ins. Co. v. Williams, 62 Ark. 382; Manlove v. Ins. Co., 47 Kan. 309. In the latter case, it was held that: “The acts of the insurance company in deciding to close up its business and notifying the plaintiffs that the company would not be liable on its policies issued to them, without