96 Pa. 37 | Pa. | 1880
delivered the opinion of .the court, November 15th 1880.
The application and policy constitute the contract, unless some matter was fraudulently or mistakenly inserted or omitted, changing it to something else than was agreed upon. Each party pretends not fully to have known the contents before the burning of the property insured; the company asserts it had not seen the application and had no knowledge of Smullen’s agency, and Warren says he never read the policy and that the application was altered after he had signed and delivered it' to the agent. Yet both claim they made an agreement'; one that it is evidenced by the policy and application together, the other that the policy alone is the contract. At the trial the 'defendant withdrew the testimony given on its part, and the cause was submitted upon the plaintiff's; whereupon the court instructed the jury to find for the defendant. Hence, in determining whether the instruction was erroneous, the testimony must be treated as true, with inferences which the jury could properly have drawn in favor of the plaintiff.
Brown was agent for the company doing business in the counties of Clarion, Jefferson, Indiana and Armstrong, with numerous persons employed under him. If such applications as Warren’s were forwarded to the company it had notice of the sub-agency — if Brown retained them and issued the policies thereon, then the notice to him was notice to the company. When a general agent
After the application was signed by Warren and taken by the agent, it was changed by inserting the sewing-machine and the answers to three interrogatories respecting title, encumbrance and value of the land. This was done by the agent without the knowledge of either party to the contract. But if the fraudulent act was within the apparent limits of the agent’s employment, although not within the actual authority conferred upon him, the principal will be liable. The company invited the public to deal with its agent in relation to a branch of its business, and so long as he is within the apparent scope of the employment intrusted to him, the law will hold the principal liable for his acts, and charge it with his knowledge, whether the fraud is upon itself or third persons to the extent the tort affects third persons. This is but a practical application of the well recognised rule, that where one of two parties must suffer loss by reason of the fraud of an unfaithful agent it must be the company and not the innocent assured : Massachusetts Life Ins. Co. v. Eshelman, supra. We think the plaintiff’s first and second points sound, but they do not determine the case in his favor.
Warren received the policy in due time, and no misrepresenta
It was urged by the plaintiff’s counsel that whether the assured is bound to the terms of the policy by having kept it an unreasonable time is a question of fact for the jury. Where the facts are not clearly established, or where the question of time depends on other controverted facts, or where the motives of the party enter into the question, perhaps the whole must necessarily be submitted to the jury. But what is a reasonable time is a question of law, and where the facts are clearly established, must be determined by the court. It has been settled that where no time is specified for the performance of a contract, that the law implies that it shall be performed within a reasonable time; also that a reasonable time is
Judgment affirmed.
Justices Merour and Sterrett dissented from that part of the opinion which imputes legal negligence to the act of retaining the policy, also from the judgment.