89 N.Y.S. 934 | N.Y. App. Div. | 1904
In or about the month of August, 1900, Albert K. Shipman was appointed the local agent of the plaintiff, the National Fire Insurance Company, at Yonkers, N. Y., and from that time until July, 1903, was engaged in the business of writing policies of fire insurance in that city for persons whom he solicited, or who solicited him in that behalf. During that time he was also the agent of other fire insurance companies. . At the time of his appointment by the plaintiff he received from it certain written “ instructions to agents,” in which notice was given him that he would be required to enter the exact copy of the written portion of every policy in the “ policy register,” together with the indorsements upon such policies, rates of premium and other matters in connection with the business. He was also instructed that all business done for the plaintiff must be reported to the home office of the company at Hartford on the day of the transaction, and that reports of policies, assignments, transfers and the like should be placed upon the blanks furnished by the plaintiff for that purpose. These blanks are. known as “ daily report . blanks.” Although supplied with the policy register Shipman did not undertake to use it. Soon after his appointment he was visited by the special agent of the plaintiff and by him given permission to keep a duplicate of the-daily reports sent in to the head office upon the daily report blanks in the place and stead Of the policy register. It appears that the details of the policies written were set forth more at large upon the daily report blanks than would have been the case in the policy register. These duplicate daily reports he .kept in permanent form in a “ daily report case,” and they appear to have served the purpose of a policy register completely. When
On or about the 5th day- of June, 1903, by an instrument in writing, Shipman, in consideration of" the sum .of .$1,000, assigned and transferred to the defendant “ his, insurance-business. and. the good will thereof, including the expiration register, the daily reports, and the' daily report case now owned by the said Shipman, and all other papers or documents relating thereto.” Shipman covenanted and agreed' that the premiums of insurance then in force amounted to upwards of $7,000. About the time of this sale the defendant called at the office of the plaintiff company with the request that he be appointed its local agent at Yonkers. The plaintiff, however, refused to grant the request and demanded from the defendant the duplicate daily reports which had been in the possession of Ship-man, kept by him- pursuant to the written instructions he had received from the company, and all other property that belonged to the plaintiff. Upon his refusal he was informed that the company would fight for thé property, and this action was brought seeking a judgment that the daily reports and other written or printed memoranda, information and particulars delivered by Shipman, to the defendant be adjudged to be the property of the plaintiff and for
Prior- to the trial and again upon the trial itself the defendant offered to return to the plaintiff the copies of the daily reports which .had come to him through Shipman and all memoranda or copies he had taken therefrom. The plaintiff declined to settle the action in that way, claiming its right to the possession of the expira
Out opinion is that the plaintiff was not the owner of the expira* tion register nor entitled to its possession, and hence not entitled to enjoin the defendant from the use in any lawful manner of the information derived from the expiration register. As to the balance of the books, papers and memoranda, including the copies of the daily reports, the plaintiff is their’ owner, and this seems to be' conceded, and the plaintiff is entitled to its injunction against the defendant restraining him from- using the information he obtains exclusively from them in soliciting business from policyholders in the plaintiff company. So far as1 the judgment appealed from treats of the expiration register, however, it is wrong, and must be modified by eliminating its directions ¡in respect to that book.
The uncontradicted evidence tends to show, and the custom is so universal that the court may take judicial notice (Hutchinson v. Manhattan Co., 150 N. Y. 250; 256; Merchants' Nat'l Bank of Whitehall v. Hall, 83 id. 338, 345.; Agawam Bank v. Strever, 18 id. 512; Bookman v. N. Y. E. R. R. Co., 137 id. 305 ; Frace v. N. Y., L. E. & W. R. R. Co., 143 id. 182; Anderson v. Blood, 86 Hun, 244, 246, 247), that the; business of a fire insurance agent, at least in the smaller cities and towns,1 is to.represent contemporaneously several insurance companies, and. consists in soliciting per-. sons to permit the agent to place insurance for them, or in being solicited by those desirous of 'being insured, for the same purpose. Only in rare cases do those who seek insurance express preference for any one fire insurance company over another, or request that their insurance be placed with' any particular company. The proof in this case vends to show that, for the three and one-half years Shipman was the agent of the plaintiff apd other companies, he was rarely, if ever, requested to place insurance with any particular company, and exercised his own judgment in determining with which of the insurance companies he represented he would place the insurance.
The only fair inference in this case is that the' expiration book was originally manufactured for the purpose of enabling fire insurance agents, for their own purposes and not for the benefit of the insurance companies they represent, to keep track of their customers and the business of those customers with themselves. It was given to this defendant before he . sold out to Shipman six or more years ago, and contained a ruled column appropriate for inserting the name of the insurance company with which the several policies of insurance were placed. This very circumstance seems to me to negative an intent upon the part of the insurance company which presented him with the book, and an intent on the part of either the defendant or Shipman, that the register was to be kept for any other purpose than as the personal legitimate memorandum of the agent. The plaintiff’s special agent, Stone, seems to have treated the book in the same light, for although he knew of its existence, and had seen it in Shipman’s possession while making his regular calls upon him, he did not include it in his demand for papers from the defendant upon refusing the defendant’s offer to represent his company. His evidence clearly indicates that when visiting Shipman in his regular calls he attached no importance' to "the expiration register,, as a writing, memorandum or book of the plaintiff, relating in any respect to plaintiff’s business, to which the plaintiff was not entitled honestly and without violation of his confidential relations and the loyalty an agent is said to owe his principal.
It must go without saying that a grocery clerk may not lawfully surreptitiously copy the names of his employer’s customers from the
It cannot be said from any facts proved, in the record, and from the customary manner in which fire insurance agents conduct their business, that such insurance companies have property rights in the renewal of the policy by the customer after the expiration of the term, nor did Shipman or the defendant at any time undertake with the plaintiff that they or either of them would renew policies which they had written for the plaintiff in the same company. The policyholder was free to renew with any company he might see fit or not to renew his policy at all. Shipman procured the insurance for the plaintiff in the first place from customers or patrons of his own. It is entirely lawful ■ for the defendant, so long as he does not use for that purpose the information gathered exclusively from the plaintiff’s property, to solicit these customers and patrons in behalf of any insurance company lie may see fit, the plaintiff or any other, so long as he does not abridge the -enjoyment by the plaintiff of its beneficial interests in existing contracts of insurance by inducing improper cancellations.
The' judgment should be modified in accordance with these views, and as modified affirmed.
All concurred, Bartlett, J., in result.
Interlocutory judgment modified in accordance with the opinion of Hooker, J., and as modified affirmed.