144 Ark. 345 | Ark. | 1920
(after stating the facts). Where both parties ash for a peremptory instruction and do nothing more, they assume the facts to be undisputed, and in effect submit to the trial court the determination of the inferences to be drawn from them. St. L., I. M. & S. Ry. Co. v. Ingram, 118 Ark. 388.
In the case at bar each party asked the court for a peremptory instruction and requested no other instruction. This then amounted to a submission of the cause to the court sitting as a jury, and in reviewing the action of the trial court we are limited to a consideration of the correctness of the finding on the law and must affirm the judgment if there is - any evidence in support of the court’s finding.
Wirt testified that he was the general agent of the company in local territory. The general rule is, that a principal is bound by the acts of its agent within the authority conferred upon him and this includes what is usually necessary to the performance of such duties. In discussing the authority of a general agent in Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, the court said:
“A principal is not only bound by the acts of the agent done under express authority, but he is also bound by all acts of a general agent which are within the apparent scope of his authority, whether they have been authorized by the principal or not, and even if they are contrary to express directions. The principal in such case is not only bound by the authority actually given to the' general agent, but by the authority which the third person dealing with him has a right to believe has been given to him. Brown v. Brown, 96 Ark. 456. The question in all such cases relative to the acts of a general agent is, not whether the authority of such agent was limited, but whether the person dealing with such agent had knowledge or notice of such limitations of his authority. ’ ’
Wirt said that he was the general agent, local territory. The words, “local territory,” did not limit his powers as agent, but only restricted, the territory over which he might exercise the powers of a general agent. Wirt testified that when the brothers came to him and submitted the insured’s application for a permit to go overseas and he told them that it was all right, that he would attend to the matter, he had in mind that he had already sent a blank form to the insured at Camp Pike, to be filled out, and supposed that the insured would fill out the blank form and mail it to the company. In testing, however, the legal sufficiency of the evidence to support the finding of the court, we must consider the evidence in the light most favorable to the plaintiff. It does not appear that Wirt communicated to the brothers of the insured that he had already sent in a blank form to the insured at Camp Pike to be there filled out by him and mailed to the company at its home office. Wirt told the brothers that it was all right and he would attend to the matter. He had already told the insured when he passed through Dardanelle on his way to Camp Pike to notify him in case he got orders to go overseas so that he might attend to the matter of getting a permit for the insured. Wirt also told the insured that he would attend to the matter of paying the premiums.
Under this state of the record the court was justified in finding that Wirt was general agent of the. company at Dardanelle and possessed, at'least, the apparent authority to receive the application for a permit to enlist in the army and to go overseas, given to him by the insured’s brothers and to accept the same.
The court was further justified in finding that he had authority to accept such application in the form it' was presented to him, and that the brothers of the insured were justified in relying upon his promise in the premises. Therefore, the evidence was legally sufficient to justify a finding by the trial court in favor of the plaintiff.
Again, it is insisted that the court was not warranted in finding in behalf of the plaintiff because no extra premium was paid as required in case of policy holders who were soldiers in the United States army and had received permits from the company to enter such service and to go over sea and fight in the war with Germany.
It will be remembered that the insured was killed in battle in France in July, 1918, and that his second premium was not due until the 22d of August, 1918. In pursuance of the agreement of the insured and his brothers, Wirt-charged the amount of the second premium on the books of the merchant with whom he worked, to Bates Brothers, and remitted the amount to the company. It is true this was done before any of the parties knew that the insured had been killed in battle, but it was done pursuant .to an agreement made by Wirt with both the insured and his brothers. Wirt was the credit man for a mercantile firm in Dardanelle and had authority to say when and how much money would be paid by the firm for each customer. He agreed with the insured and his brothers to take care of the premiums on his policy and to pay them to the company and charge the Bates Brothers with them on the books of the mercantile company. Of course, in making the payment to the insurance company he was acting as agent of the Bates Brothers, but in receiving the money he was acting as agent of the insurance company. The Bates Brothers made an arrangement in advance with the mercantile company to secure the money and Wirt promised to apply it to the payment of the premiums as they fell due. Both the insured and his brothers were justified in believing that Wirt would pay the second premium when it fell due, and that he would pay the additional premium under the War Risk Clause. They had made arrangements for the money with the mercantile firm of which Wirt was the credit man and he agreed to send the money in to the insurance company. As general agent of the company, he had the authority to receive the money and send it in. The money was there under his control all the time, and he had nothing to do but send it in to the company. Therefore the court was justified in finding that the insured had done all that was necessary for him to do with regard to paying his premium. New York Life Insurance Company v. Allen, 143 Ark. 143, and Sovereign Camp Woodmen of the World v. Newsom, 142 Ark. 132.
It follows that the judgment must be affirmed.
