137 Va. 278 | Va. | 1923
delivered the opinion of the court.
This is a proceeding by motion under section 6046 of the Code, instituted by Brown against the Insurance Company and Brooks Marmon, to recover $700.18 alleged to have been paid to Marmon as agent of the Insurance Company for certain insurance in the defendant company which was never furnished. There was a judgment against the Insurance Company for $604.30, to which the company assigns error.
There are four assignments of error, the first two of which are to the refusal of the trial court to set aside the verdict of the jury on the ground that it is contrary to the evidence. The trial court was without power to set aside the verdict on that ground, unless it was either without evidence to support it, or was plainly contrary to the evidence. The case made by the evidence as we must view it was as follows: Brooks Marmon had been the agent of the company at Roanoke, Virginia, for a number of years and had authority to solicit insurance, to give information as to the character of the insurance written and the rates therefor, to collect the first year’s premiums and “premiums or
The gist of the plaintiff’s action is that he paid to the defendant $700.18 as advance payments on $2,000.00 of life insurance which would have paid the premiums for over seven years, and that the defendant furnished the insurance for only one year and then
It is undisputed that Marmon collected the $700,18 of Brown to be applied to advance payments of premiums on the $2,000.00 insurance, but it is earnestly insisted by the company that Marmon was an agent of limited authority and had no power to collect advance payments for the company, and that in receiving and collecting the checks from Brown he was acting as agent of Brown, and not of the company. Brown had no notice of any limitation upon the powers of Marmon, and had the right to deal with him upon the faith of his ostensible powers, whether his agency was general or special. Byrne v. Massasoit P. Co., 137 Mass. 313; Butler v. Maples, 9 Wall. 766, 774, 19 L. Ed. 822; Reese v. Bates, 94 Va. 321, 26 S. E. 865; Huff-cut on Agency, sec. 104. . Marmon’s employment by the company was by written contract, and whether or not he had authority, under that contract, to collect in advance more than one premium on any ordinary life policy is not free from doubt. He thought and testified he had, and Love, the manager of the Richmond agency, which covers most of the State of Virginia, including Roanoke, while testifying for the company, admitted he had such authority provided he got the company’s receipt therefor duly signed before making the collection. While clause 1 of the contract only authorized Marmon to collect “first year premiums,”'
But if we are in error in this conclusion, it is immaterial whether he had such authority or not, if the collection was in fact made by Marmon on “advance payments” on the policies of Brown, and was paid over by him to the company as such “advance payments.”
“By the court:
“Q. You said when you sent cheeks you also sent a report, didn’t you?
“A. Yes, sir.
“Q. Did the report show what money you were remitting in the cheek?
“A. The company generally sent, or we had, those blank reports, monthly reports, and the policies were listed and we would sign those and send them in, we would make a list of whatever was sent in.
“Q. My question is this: You said you sent a cheek,*287 and at the time you sent a cheek you sent a report, didn’t you?
“A. Yes, sir; that is on new business.
“Q. Did the report show what the check was sent for?
“A. Yes, sir.
“Q. Well, did it show what money was included in the check?
“A. The report would show; yes, sir.
“Q. And you say you sent this money that you received from those two cheeks that were given for the loan; that you sent the money for those two cheeks to this company?
“A. Yes, sir.
“Q. At one time you said you sent the premium on the new policies that you took?
“A. Yes, sir.
“Q. And at another time you sent the balance of that money?
“A. Yes, sir; at some other time.
“Q. And you made a report to the company which showed that you were sending them the balance of that money?
“A. Yes, sir; I would generally write a letter, or sometimes I wouldn’t even do that.
“Q. Now, what did your report show that you paid this money over to the company for?
“A. You mean this Brown?
“Q. Yes.
“A. It would show that I paid the net on the policy, and later on it would show that I paid the balance of the money.
“Q. What did you pay the balance of the money for?
S‘A. To go to his credit.
*288 “Q. To go to Ms credit?
“A. Yes, sir.
“Q. To be applied on other premiums?
“A. To be applied on other premiums; yes, sir.”
Counsel for the plaintiff then asked Mm, “Mr. Marmon, you had the right to collect, under this contract, all premiums and advance payments on policies, did you not under the fifth clause here?” To which he replied, “Yes, sir.” Further: “You tell the jury that you did remit this money to the company that you collected from Horace E. Brown?” Ans. “Yes, sir.”
As the case appears to us, we are not prepared to say that we would have found the same verdict that the jury found, but they had the advantage of seeing the witnesses and their demeanor on the stand, and of hearing, and it has been repeatedly said by this court that where there is some evidence to support the verdict, it should not be set aside simply because the court, if on the jury, would have found a different verdict. To warrant the setting the verdict aside it must be either without evidence to support it, or plainly contrary to the evidence.
The question involved was peculiarly one for trial by jury. An able trial judge has refused to set the verdict aside, and the record does not disclose such a state of facts as warrants interference by this court.
Exception was taken to the action of the trial court in giving the following instruction for the plaintiff, designated Instruction A: “The court instructs the jury that if they believe from the evidence that J. Brooks Marmon collected from H. E. Brown, the plaintiff, the sum of $700.18 and actually remitted the same to the defendant company, and that the company received it for the payment of advance premiums, then the said Mutual Life Insurance Company is liable to
We have already pointed out that the proceeding was in effect an action for money had and received, and hence the instruction was within the scope of the pleadings. The only other criticism of it is that it warranted a finding for the plaintiff although the jury may have believed the money was paid “to the company and received by the company for the payment of advance premiums due, not by Brown, but by third persons.” Instructions are to be read in the light of the evidence, and upon the assumption that the jurors are at least men of fair average intelligence, and will apply the law given by the court to the evidence introduced before them. New York, etc., R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264.
The instruction correctly stated the law, and is not amenable to the objection made to it.
The defendant asked for seven instructions. The court refused three of them and give the other four. The defendant excepted to the action of the court in refusing instructions numbered 1, 2 and 3. Instruction No. 1 was as follows: “The court instructs the jury that it is th.8 duty of one who procures insurance on his life to examine the policy promptly upon its receipt, and if it does not accord with his contract to return it within a reasonable time, and if they believe from the evidence that the two policies of insurance issued to the plaintiff were delivered to him and that he kept the same for a period of six months or more, and made no complaint and that before he made any complaint to the defendant insurance company, the defendant, Marmon, encumbered his property or a substantial portion
The first branch of this instruction was sufficiently covered by instruction A given for the plaintiff. By that instruction the plaintiff did not ask for a recovery simply if the money was paid to Marmon, but went further and asked recovery only if Marmon “actually, remitted the same to the defendant company and that the company received it for the payment of advance premiums.” If such were the facts, it was immaterial whether the plaintiff looked at his policy or not. If the company received the money for advance premiums on the policy, it was its duty to furnish the insurance, or else refund the money. It was immaterial whether Marmon had authority to receive the premiums in the first instance or not, if the company received and accepted the money for the purpose aforesaid. If such were not the facts, the inference was the jury were to find for the defendant. Instruction No. 4, given for the defendant, told the jury that the burden was on the plaintiff to show that the company “received the money paid by the plaintiff to Marmon in this case, and the plaintiff must show this by á preponderance of affirmative evidence.” The instruction tendered ignored this feature of the case, and would have been misleading to the jury, in view of the language of instruction A. The company was amply protected by instruction A if Marmon received the money without authority and appropriated it to his own use. The latter part of the instruction was properly refused because there is no evi
Instruction No. 2 tendered by the defendant company was as follows: “The court instructs the jury that if they believe from the evidence that (the plaintiff), Brooks Marmon, was the agent of the defendant, The Mutual Life Insurance Company, at Roanoke, for the purpose of soliciting policies of insurance, obtaining applications therefor and forwarding the application to the company, which were passed upon by the company and after approved, policies were issued and then forwarded to the said Marmon, who had authority only to deliver said policies and collect the first premiums thereon; and if they further believe from the evidence that the plaintiff, Horace E. Brown, obtained a loan from the defendant, The Mutual Life Insurance Company, who sent the checks payable to the order of said Brown and his wife in payment of said loan, amounting to $700.18, to the said Marmon, with instructions to deliver the said checks to the said Brown, that the said Marmon delivered the said checks to the said Brown, who, with his wife, endorsed the said checks in blank and said Brown delivered the same to the said Marmon, with the intent and for the purpose of procuring insuranee of the defendant, The Mutual Life Insurance Company, on the life of the said Brown for such a period and for such amount as could be purchased for the said sum of $700.18, then the said Marmon was in said transaction the agent of the plaintiff and not the agent of the defendant, The Mutual Life Insurance Company, then you shall find for the defendant, The Mutual Life Insurance Company.”
Instruction No. 3 tendered by the company and refused was practically the same as No. 2, except that the concluding paragraph of No. 3 was as follows: “And if the jury further believe from the evidence that the said Marmon did not pay over the said sum of $700.18 to the said defendant, The Mutual Life Insurance Company, after the said checks were so endorsed and delivered to him by the said plaintiff, then you shall find for the defendant, The Mutual Life Insurance Company.” This part of instruction 3 is fully covered by instruction 6 given at the instance of the defendant company, and the trial court committed no error in refusing to give instruction 3.
Instruction 6, above referred to, was as follows: “The court instructs the jury that if they believe from the evidence that the defendant, Marmon, was the agent of The Mutual Life Insurance Company for the purpose of soliciting policies of life insurance, and that the said company sent to said Marmon the two checks in the notice mentioned, made payable to the order of the plaintiff, Brown, and his wife, and that the plaintiff
The instructions given by the court fully and fairly submitted to the jury the law on the issues involved, and no error was committed by the trial court in its rulings on the instructions tendered.
The record discloses no error in the proceedings in the trial court, and its judgment is accordingly affirmed.
Affirmed.