3 S.D. 205 | S.D. | 1892
This case was argued and submitted at the April term, 1891, of this court, and the judgment of the court below was affirmed. The opinion of the court is reported in 2 S. D. 17. A petition for a rehearing was filed, and, by reason of the important questions involved, was granted. The case was reargued at the October term, when the counsel for appellant not only argued the case orally, but submitted an ..elaborate and exhaustive brief and printed argument. The first point made by the learned counsel is that the court erred in its decision in holding that Ben Phelon, who issued the policy in controversy in this action, was the general agent of the defendant, and contends he was only a special agent. We assumed, in our opinion; without discussing the question, that Phelon was a general agent of the defendant, and a careful examination of the question leads us to the conclusion that we were correct in designating him as such. The instrument ap
It will be observed that by this instrument Phelon was authorized to solicit and contract for insurance at the city of New Orleans, “and the vicinity thereof,” and “to issue policies therefor.” He was required to furnish the company “full information-respecting any risk upon which he might issue any policy of insurance.” It will thus be seen that he was not a mere soliciting agent, but that he had full authority to contract for insurance, and issue policies therefor, without communicating with the home office otherwise than by reporting the policies he had issued. This power would, of course, include the power of fixing the amount of premium to be paid, and all the other incidents connected with the contract. It will be further noticed that his authority not only included the city of New Orleans, but “the vicinity thereof,” — a rather comprehensive term. That he possessed blank policies,
The second and main contention of the counsel is that the question of agency is always a question of fact for the jury. In this contention we cannot agree with counsel. We know of no rule that makes the question of agency an exception to the general rule that, when there is not sufficient evidence, in the opinion of the court, to warrant a jury in finding a verdict, — and if found it would be set aside by the court, — it is the duty of the court to direct a verdict. And the same rule applies to the admission of evidence of the acts of one to bind the principal, who has not by the evidence been shown to be an agent. Mr. Mechem
This seems to be a reasonable and proper rule. Surely a person ought not to be bound by the acts or declarations of an alleged agent until there is sufficient evidence to warrant a jury in finding that such person is in fact an agent. This power of the court should, undoubtedly, be exercised only in a very clear case, and in no case when the evidence is to any extent conflicting, or when the evidence is such that different minds might honestly draw different conclusions therefrom. The inferences or conclusions, however, must be such as can reasonably be drawn from the evidence itself. Jurors cannot be permitted to base their verdict upon mere speculation or conjecture of facts that might exist, or upon theories invented by themselves or by. counsel, entirely unsupported by the evidence. Stone v. Crow, 2 S. D. 525. This is well illustrated by the contention of the learned counsel in this case. Speaking of the map sought to be introduced in evidence, he says: “The jury would have been justified in drawing the inference that, when Jacob D. Henderson had the conversation with Badet, the secretary of plaintiff, in reference to insurance, he then made said map with the knowledge of said Badet, for the purpose of obtaining said-insurance, and that in this case the map was so used.” Yet Badet and Henderson were both witnesses in the case, and the map is not mentioned or referred to by either of them. Now, if the fact was as claimed, would it not have been brought out in the evidence of one of them at least? Would not the inference that all men would naturally draw from the evidence of these two witnesses be that no such fact existed? Would not the failure of either witness to refer to or mention tMs map be quite conclusive that no such fact as that stated existed? If, as it was claimed, this map constituted material evidence in .the case, would it be. probable, that .able counsel in examining these
The learned counsel further insists that there was evidence tending to prove that Henderson Bros, were acting as the agents of plaintiff, in obtaining the' insurance policy in controversy, and that it should, therefore, have been submitted to the jury. But, upon a re-examination of the evidence as found in the record, we are unable to discover such evidence. Henderson Bros, were local insurance agents at South Bend, where the plaintiff’s property insured was located, and where the plaintiff was engaged in business. They were agents for and represented a number of insurance companies. This fact must be kept in view, in order to a full understanding as to what occurred between them and the officers of the plaintiff. Having a clear view, then, of the position of the parties, the plaintiff with property in South Bend which it desired to keep insured, and Henderson Bros, agents at South Bend for various insurance companies desiring to secure business, we can see that only one construction could reasonably be given the little conversation occurring between Henderson and Badet in regard to insurance, and that is that Henderson Bros.; as agents of the various companies they represented, wanted to secure the plaintiff’s insurance business, and that plaintiff consented that they might insure this property in their companies. Any other construction, when the relative situations of the parties are considered, would be a clear perversion of the language used. The plaintiff probably never thought of employing an agent to act for it, but consented that Henderson Bros., who were selling insurance, might insure its property. The case is quite analogous to May v. Assurance Co., 27 Fed. Rep. 260. The evidence so clearly established the fact that Runk & Co. were the agents or sub-agents of Ben "Phelon, and consequently of the defendant, that the court was fully justified in so holding as a matter of law. There was no question upon that branch of the case to submit to a. jury. The evidence shows that Runk & Co. and Ben Phelon were the agents of each other in placing certain insurance business, for which each paid the other a commission. It is true Runk & Co.
We are unable to see upon what possible theory a verdict for the defendant, had the jury so found, could have been permitted to stand, if it had been based upon the falsity of the representations in the policy. That a policy was issued by Phelon upon the property, that the property was destroyed by fire, and that plaintiff paid to the party who delivered the policy the premium, are facts not controverted. That Bunk & Co. actually received the premium is virtually conceded; that they exchanged business with Phelon, for which he paid them a commission, is not controverted; and that they kept a mutual account, charging each other with premiums ánd commissions, is clearly proven, — the only controversy being as to the state of their accounts at the time the premium for this policy was received; and that they allowed Henderson Bros, a commission on all policies requested by them is clearly proven. This being so, Bunk & Co. and Henderson Bros, were practically subagents of the defendant, and no representation's of either of them to Phelon or the defendant could bind the plaintiff. Lyons v. Insurance Co., supra.
The learned counsel for the defendant contends that the law applicable to insurance brokers applies to Henderson Bros, and Bunk & Co., but under the evidence in this case we cannot so hold.
Counsel also contends that as the court submitted to tbe jury tbe question, for whom were Henderson Bros, and Runk & Co. acting in receiving tbe premium? It was equally its duty to submit to the jury tbe question, for whom were these parties acting in procuring tbe insurance? But, assuming tbe court properly submitted tbe question as to tbe premium to tbe jury, it does not follow that it should have submitted tbe question of agency, as to which there was no conflict in tbe evidence. There being no such conflict, tbe court was tbe proper tribunal to determine whether or not tbe jury would be justified upon tbe facts in finding them tbe agents of tbe plaintiff; and upon this evidence we think the court ruled correctly.
We have re-examined tbe instructions of tbe court, and find no error therein. The whole charge of tbe court must be taken together. Tbe following portion of the charge of tbe court was excepted to:. “Tbe premium was paid to Henderson Bros. Was it paid to them by tbe plaintiff with the belief that they were the agents of tbe defendant, and authorized to receive tbe same?” This alone might be objectionable, but this is only a portion of tbe sentence. Tbe court proceeds, and concludes tbe sentence as follows: “And bad tbe defendant intentionally, or by want of ordinary care, caused or allowed tbe plaintiff to believe that Henderson Bros, were authorized to receive tbe same as agents of tbe defendant?” As thus stated, we think that portion of tbe charge is substantially correct. The next portion of tbe charge that tbe defendant’s counsel contends does not state tbe law correctly is as follows: “Tbe court instructs you that if you find from tbe evidence that tbe amount of tbe premium, less tbe commissions thereon, usual in tbe insurance business, reached Ben Pbelon, or anf other agent of tbe defendant authorized to receive tbe same, as hereinbefore-defined and explained, by means of drafts transmitted in tbe usual course of business, or by tbe offset of mutual accounts current in tbe usual course of business, tbe premium was received by the' defendant.” Tbe objection made to this is that there was no evidence as to what tbe usual cótíímissions were. In
The judgment of the court is reaffirmed.