10 A.2d 129 | Pa. Super. Ct. | 1939
Argued October 5, 1939. This action in assumpsit was brought by a licensed insurance agent against the defendant corporation to recover a balance claimed to be due for advance insurance premiums on three policies of insurance covering automobiles, workmen's compensation liability and so-called "teams public liability."
The statement of claim averred that the defendant applied to the plaintiff for policies of insurance and pursuant thereto three policies, which were set forth at length, were procured by plaintiff and issued by American Casualty Company of Reading; that the advance premiums which defendant agreed to pay amounted to $2,968.20; that within four months after the date of the policies the defendant gave written notice of the cancellation of the same, a copy of which notice was also set forth at length; that the policies were cancelled and the defendant became entitled to a credit of $1,512.85 for returned premiums and that defendant paid on account of the premiums $500, leaving a balance of $955.55. For that sum with interest this action was brought.
The defendant answered that it never ordered the policies nor applied to the plaintiff for any insurance; that the president of the defendant corporation never sent the alleged written notice of cancellation and that no money was paid to the plaintiff by defendant on account of said premiums.
The cause was submitted to a judge of the court below without a jury at which time the plaintiff offered evidence in proof of the facts alleged and in addition showed that he as agent was not only liable for payment of the advance premiums but that he had actually paid the same to the insurer. The defendant offered no evidence. Judgment was entered against the defendant for the full amount of the claim and the defendant has appealed to this court alleging as errors the refusal of defendant's motions for judgment n.o.v. and for a new *120 trial. We will confine our attention to the specific errors assigned.
The appellant first contends that the plaintiff did not state a good cause of action in that he failed to aver in his statement of claim that he had become liable for or had paid the advance premiums. It concedes, and very properly so, that an insurance agent or broker, who has become liable to an insurance company for the payment of advance premiums and has in fact paid the same, may sue in his own name to recover from the customer the premiums so paid: 33 C.J., Insurance, § 765; 3 Standard Pennsylvania Practice 138; Waters v. Wandless, (Texas court of civil appeals), 35 S.W. 184. The complaint, in short, is that although the plaintiff did in fact offer evidence tending to prove all the essentials of a good cause of action, the judgment must be reversed because of the failure to aver the payment of the premiums by the agent to his company.
Admitting for the sake of argument that there was a variance, the pleadings were amendable upon the trial and might even be amended now in this court: Kroegher v. McConway Torley Co.,
Even though the allegata and probata may not precisely agree, if the variance did not "affect the trial on its merits, or set up a different cause of action, or impose any different burden on the defendant, the variance would not be considered material":Calvey v. Coyer,
Appellant next urges certain trial errors. By its sixth assignment of error it complains of the refusal of its motion to strike from the record "all testimony relating to Morris Caplan or one Lieberman who is said to be acting for the defendant . . . . . . because there is no testimony whatever, no competent testimony, that they were authorized to act for the defendant." The testimony referred to was offered for the purpose of showing authority upon the part of these men to procure insurance for the company and to cancel policies. It is a well established principle that whatever evidence has a tendency to prove an agency is admissible even though it be not full and satisfactory, and it is the province of the jury to pass upon it. "Direct evidence is not indispensable — indeed, frequently is not available — but instead circumstances may be relied on, such as the relation of the parties to each other and their conduct with reference to the subject-matter of the contract": Lasch v. Cohn,
Defendant next complains of the admission in evidence of the letter of cancellation without proving the signature of Mr. Caplan as president. As we have pointed out, although the letter was printed in full and attached to the statement of claim the defendant did not deny the signature. Consequently, it could have been shown by offering the pleadings. The letter in question was received in due course through the mail and was written on defendant's stationery. That such cancellation in fact issued is implicit in defendant's argument as contained in its written brief for it spends much time in arguing that the plaintiff did not show by competent evidence the exact amount of credit to which it was entitled by way of return premiums. We have no doubt that this letter was properly received in evidence.
Finally, defendant urges that plaintiff failed to prove the surrender value of the policies in question. It is only necessary to say that plaintiff was under no obligation to do so. When plaintiff's proofs showed the amount of premiums due from defendant to plaintiff, the items of surrender value were involved only as credits. It was not necessary for the plaintiff to do more than to concede a credit on this account. If the defendant was not satisfied with the credit given it to offset the affirmative claim of plaintiff, the burden was on the defendant to show what the proper credit should have been.
We are all of the opinion that the judgment should be affirmed.
Judgment affirmed. *124