46 Ind. 44 | Ind. | 1873
This was an action by the appellee against the appellants, commenced April 15th, 1871. The complaint consisted of two paragraphs. The first was for money loaned, money paid, laid out, and expended, and money had and received. The second paragraph was to recover back an amount of money which had been paid by the plaintiff as the cash premium for a policy of life insurance from the company, through its agent, Gibson, who was made a defendant with the company. The ground of recovery relied upon was, that the company and its agent had not, when the policy was issued, complied with the first section of the act of December 21st, 1865, 3 Ind. Stat. 312, by furnishing to the Auditor of State the statement, obtaining the certificate of authority, and filing the same in the office of the clerk of the
The defendants answered by a general denial; the issue was tried by the court; there was a finding for the plaintiff as against the company, motion by the company for a new trial overruled, and final judgment for the plaintiff against the company, and in favor of Gibson, the other defendant, for costs.
The errors assigned are the overruling of the demurrer to the complaint, and the refusal to grant a new trial.
Two objections are urged to the second paragraph of the' complaint; first, that the statute only regulates the conduct of insurance agents, and does not vitiate the policies issued; and, second, that the rescission was not in time. The first section of the statute provides, that it shall not be lawful for any agent or agents of any insurance company, incorporated' by any other state than the State of Indiana, directly or indirectly, to take risks or transact any business of insurance in this State, without first producing a certificate of authority from the Auditor of State; and before obtaining such certificate, such agent or agents shall furnish the auditor with the statement required by that section of the act, under the oath of the president or secretary of the company. It is also required that the agent shall file the certificate so obtained by him, together with a certified copy of the statement on which it was obtained, in the office of the clerk of the circuit court of the county in which such agency is established, etc. It seems to us, that this statute evidently requires acts to be done by the company, as well as by the-agent. The various matters required to be shown by the-statement to be furnished to the auditor can only come from.
As the contract was void, we do not see any place for the doctrine relating to the rescission of contracts.
Several questions are presented, arising under the assignment of errors relating to the overruling of the motion for a new trial. We will not consider them in the order in which they are made in the motion.
The defendants objected to the introduction in evidence of the policy of insurance; and the ground of objection, as stated in the brief, is, that although it is referred to in the complaint and professedly made a part of it, the action is not founded on it, and it was not therefore admissible, without proof of its execution. Had this objection been urged in the common pleas, it is possible that it would have prevailed ; but the bill of exceptions does not show that any objection to its being read, in evidence was made, in which the ground of objection was stated. This will, we presume, be received as a sufficient reason why this objection cannot prevail.
A witness for the plaintiff, being one of his attorneys, testified to a conversation with the defendant, Andrew J. Gib
The insurance company objected to the proof of the statement of Gibson that he was the agent of the company; also, to proof that he stated that he had filed no certificate of the Auditor of State in the clerk’s office; also, to evidence of his statement that he had countersigned the policy; on the ground that the same was hearsay, and inadmissible. The company also moved the court to strike out all the evidence of the statements of Gibson. The objection and motion were both overruled.
It is not easy to see why Gibson, the alleged agent, was made a defendant in the action, since the witness who testified that he said he had paid the money over to his principal was one of the plaintiff's attorneys, and knew that fact before the action was brought. The question presented is, was the evidence of the statements of Gibson, to which the company objected, admissible against the company? We think it was not admissible as evidence against the company. Whatever the agent does, in the lawful prosecution of the business of the agency, is the act of the principal whom he represents; and where the acts of the agent are admissible, his declarations and admissions respecting the subject-matter will also bind the principal, if they are made at the time,
It is quite clear to us, that the declarations of Gibson,, conceding that he was the agent of the company, to which-objection was made, were inadmissible against the company. It would be a strange rule of evidence which would allow the declarations of an alleged agent to be received in proof of the agency. The other declarations related to matters which had long since passed, and not to a matter then-depending. There was no joint or other interest between Gibson and the company, which could make his declarations admissible against the company. He seems to have been a man- of straw, introduced, possibly, with a view to the use-of his admissions as evidence in the case.
The judgment is reversed, with costs, and the cause-remanded..