Wisconsin Central Railway Co. v. Phœnix Insurance, 101 N.W. 703

Wisconsin Central Railway Co. v. Phœnix Insurance

101 N.W. 703

Wis.

1904

Check Treatment

SiebecKeb, J.

Uрon the foregoing statement of facts of ■the case the circuit court held that Furlong & Leedom were ■not the agents of the plaintiff to receive notice to cancel sub.-sisting insurance, and held that the policies sued on'were ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in force at the time of the fire. It is strenuously insisted by •the defendant that the facts and circumstances show that Furlong & Leedom had authority from the plaintiff to rc-■ceive notice to cancel subsisting policies‘and prоcure substituted insurance to keep'up the full line of insurance origin•ally ordered. An insurance agent may be the agent of the .assured in procuring insurance, if his duties as such agent do not conflict with his duties as agent of the insurance сompany, under sec. 1917, Stats. 1898; but when a conflict of •duties arises his authority to act for the assured must yield to ■that imposеd by this statute. Schauer v. Queen Ins. Co. 88 Wis. 561, 60 N. W. 994; John R. Davis L. Co. v. Hartford Ins. Co. 95 Wis. 226, 70 N. W. 84; Welch v. Fire Asso. 120 Wis. 456, 98 N. W. 227. It is also well established that, •where an agent is employed to procure insurance, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such employment, in itself, does not authorize him to represent the *317assured to receive notice of cancellation of subsisting insurance and to substitute other insurance in place of the insurance sought to be canceled. Body v. Hartford Ins. Co. 63 Wis. 157, 23 N. W. 132; Wicks Bros. v. Scottish U. & N. Ins. Co. 107 Wis. 606, 83 N. W. 781. The facts of the Body Case corrеspond to those of the instant case as to the manner’ of procuring insurance through an agent applying tо'another agency to write it. There, as here, the application was made-to an agency, which placed the insurance through another,, without a direction from the assured ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the latter. Under such circumstances the agency receiving the order from the-assured are, under sec. 1977, Stats. 1898, the agents of the insurance company issuing the insurance. The question, then, is, do the facts and circumstances proven in the case-show that Eurlong & Leedоm had express or apparent author--ity from plaintiff to act for it in receiving notice to cancel' subsisting policies ? The record discloses that both Mr. Gill- and Mr. Leedom testified on the subject of express authority, and deniеd that any was ever given or received. We find no other evidence directly on this subject, and must therefore-conclude that plaintiff gave no such authority to Eurlong &: Leedom by express direction.

It is contended that the policies sued on had been terminatеd by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the issuance and delivery of substituted insurance ■ by Eurlong & Leedom, upon the ground that the course of' business as conduсted between them amounted to giving authority to cancel subsisting insurance and substituting other-policies. This is predicated upon the claim that whenever these agents received notice of cancellation of any insurance-they made an office record of such notice, and made entries on their office books declаring such policies canceled and others-substituted as of the time and under the date of the original policy, and they thereupon delivered such substituted policies ■ to Mr. Gill, by whom they were received in place of the canceled policies. It is also claimed that this course of conduct-*318mg tbe business was a direction to tbe agents to keep up tbe line of insurance to tbe full amount; and that tbis was done by them, it is claimed, is evidenced by tbe way thеy made substitution whenever directions to cancel policies came to their notice. We cannot assent to these contentions. It seems to us that tbe findings of the trial court against tbis view are abundantly supported by the evidence. It is shown without contradiction that Hr. Gill gave specific direction on each occasion when оrdering insurance to be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍placed, as to the amount, and no policy was ever accepted unless he approved of the company issuing it, and the amount for and the terms upon which it ivas written. It also appeаrs that he retained possession of the policies, and that, when apprised of tbe fact that insurance wаs ordered canceled, he would determine whether the policies held by him were to be surrendered, whether the insurance was to be kept up to the original amount, and whether the substituted policies were to be ■accepted. Nor did Messrs. Furlong & Leedom receive their ■compensation from'plaintiff. Whatever compensation they received was paid directly by the companies, or was received by them by a division of the commissiоn with the local agents. Furthermore, eveyy order for insurance given them seems to have been undertaken and executed as a separate and distinct employment in procuring insurance and receiving payment of premiums. Under these facts and circumstances it must be-held that Furlong & Leedom had no express or apparent authority from plaintiff to represent it and to receive notice of cancellation of policies, оr to procure and accept new insurance in place of subsisting policies ordered canceled. Their duties, under the orders of Mr. Gill, were performed and completed when the policies first issued were delivеred to him. Policies could be terminated only in conformity to • their stipulation, or by agreement with him as the compаny’s representative. Their employment and the course of conducting the business in procuring the insurance for plaintiff *319•gave them no authority to receive' notice of or to consent to cancellation, nor were they authorized to keep up the insurance to the amount originally ordered. Similar transactions were cоnsidered by the courts in the following cases, and like conclusions reached: White v. Ins. Co. of N. Y. 93 Fed. 161; Grace v. American Cent. Ins. Co. 109 U. S. 278, 3 Sup. Ct. 207; Buick v. Mechanics’ Ins. Co. 103 Mich. 75, 61 N W. 337; Stebbins v. Lancashire Ins. Co. 60 N. H. 65. 'The findings of the trial court axe fully sustained by the evidence, and must be affirmed.

Ihj the Court. — Judgment affirmed.