105 Ala. 282 | Ala. | 1894
It is obvious the admissibility of the evidence excluded is to be tested by the inquiry whether Trimble & Co., when a member of the firm prepared the application for insurance in which occurred the misdescription of the location of the storehouse, were the agents of the defendant. If there was legal evidence having a tendency to support the affirmative of this inquiry, the evidence excluded ought to have been 'received, leaving the jury to pass upon its sufficiency and credibility, however much may have been the conflict in the evidence touching the transaction to which it related. If there was an absence of such evidence, or, if the legal evidence, without conflict, showed that in the preparation of the application and the procure
Contracts of insurance are usually negotiated by the insurer through the intervention of agents ; and this is so of necessity, when, as is now almost universally true, the insui’er is an incorporated company. The company can act only through its officers and agents ; and to the officers and agent representing it at its principal place of business, it has the power to add any number of special or general agents it may deem proper. It is these agents with whom the insured frequently negotiates insurance, and upon whom reliance is placed. The doctrine now generally accepted is that when an agent of a company, having authority to solicit insurance, or to receive applications for insurance, voluntarily, or at the request of the applicant, assumes to prepare the application and by negligence, or mistake, or intentionally, inserts therein matter which is untrue, the applicant having truly stated the matter, procuring the signature of the applicant to the application, if the company receives the application and premium and issues the policy, in the event of loss, it will be estopped from insisting on the falsity of the matter to avoid liability, though the truth of the matter may be warranted by the insured. And this is true, though the policy may declare that when the application is made through an agent, he shall
The doctrine necessarily rests upon the hypothesis, that the person by whose acts, declarations, or mistake, the company is to be estopped, was its actual agent for some purpose; having some authority to represent and bind it in the transaction of some part of its business.—Atlantic Ins. Co. v. Carlin, 58 Md. 336. When it is found there was an agency, as to third persons dealing with the agent in good faith, as to all matters within the scope of his apparent or real authority, the company is bound. — 2 Wood on Pire Insurance, § 408 ; May on Insurance, (2d Ed.), § 126. Agency springs from contract, and the consent of the principal, express or implied, is as essential to its creation, as it is to the constitution of any other contract. — Wharton’s Law of Agency, § 1. If the consent of the principal has not been yielded ; if he has not clothed the supposed agent with any authority, real or apparent, the acts or declarations of such person as to the principal, are res inter alios acta; and for them, whether the principal be a natural person, or a corporation, whatever may be the business transacted, the principal can not without manifest injustice be affected.
The undisputed facts are, that the plaintiffs applied to Trimble & Co. for insurance of the storehouse and stock of merchandise. From whom, or from what company, the insurance was to be obtained, or the rate of premium to be paid, was not the subject of negotiation. There was no representation bv Trimble & Co. that they were agents, or that procuring insurance from the defendant was contemplated. So far as appears from the evidence the defendant had not invested them with any real or apparent authority. The application was prepared on a form bearing the imprint of another company, indicating that they had not the forms of the defendant, or that to what' particular company the form pertained was immaterial in the view of the parties. They were not and had never been agents of the defend
There is no difficulty in ascertaining the real relation of Trimble & Co. As to each of the parties they were essentially, and acted as insurance brokers. In Arff v. S. F. Ins. Co., 125 N. Y. 63, it is said: “What is understood under the designation of an insurance broker is one who acts as a middleman between the insured and the company, and who solicits insurance from the public, under no employment from any special company, but having secured an order he either places the insurance with the company selected by the insured, or in the absence of any selection by him, then with the company selected by such broker. Ordinarily, the relation between the insured and the broker, is that between the principal and his agent. ”
It does not appear that Trimble & Co. were the agents, or in the employment of any company. The only connection they had was with the agents of the defendant by whom the application was received, and who issued the policy, and they had the same connection with all other insurance agents in the city of Montgomery. This connection was an arrangement they had with these agents, that if they presented an application for insurance, and the agent accepted the risk, and issued the policy, there was division of the commissions the agent was entitled to receive from the company he represented. Ordinarily, a broker receives his compensation from his principal; but that by an arrangement or agreement with the insurer, or with an agent of the insurer, he obtains
The delivery of the policy to Trimble & Co. for delivery to the plaintiffs, on the payment of the premium, did not change their character and relation as agents of the plaintiffs. Thereby they were merely enabled to consummate their agency, and until its consummation the agency continued. Necessarily, thereby they became the agents of the defendant, limited in authority to the delivery of the policy and receiving payment of the premium. The payment to them of the premium, was the equivalent of a payment to the defendant, rendering the policy a binding contract, even though they had not paid the premium to the defendant.—Arthurhold v. Susquehanna M. F. Ins. Co., 159 Penn. St. 1;S. C. 39 Am. St. 659. This subsequent and limited agency, incidental to and
There was not only an absence of evidence of an agency for the defendant, of any kind or character, by Trimble & Co., when the application for insurance was prepared; but, as we have said, such agency was negatived, and affirmatively it appears that they were the agents of the plaintiffs. There was of consequence no error in the exclusion of the evidence, which could only be admissible when connected with legal evidence having a tendency to show the existence of the agency. . “ Whether there is any evidence or not is a question for the judge ; whether it is sufficient evidence is a question for the jury. — 1 Greenl. Ev., § 49. While it is the duty of the court to submit all competent evidence to the consideration and determination of the jury ; it is equally a duty, when assuming the truth of all legal evidence adduced by the one party or the other, if it does not tend to support the issue he is bound to maintain, not to burden the jury with its consideration, protracting trials and needlessly consuming public time.
Let the judgment be affirmed.