Summary
ERROR TO THE COURT OH COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY.
No. 20 July Term 1888, Sup. Ct.; court below, No. 312 March Term 1882, C. P. No. 2.
On March 7, 1882, William L. Elkins, trading as William L. Elkins & Co., brought case against the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa., to recover the sum of $710.36, the loss apportioned to a policy of fire insurance for $1,575 issued by the defendant company to the plaintiff.
At tlie first trial of tlie cause, there was a judgment for the defendant on a point reserved, which judgment on April BO, 1888, was reversed by this court, and a venire de novo awarded: Reported, 3 Penny. 367. At the second trial, there was a judgment of compulsory nonsuit entered in the court below, which judgment on October 4, 1886, was also reversed by this court and a venire de novo awarded : Reported 113 Pa. 386.
The record having been remitted to the court below, the cause was again called for trial on January 5, 1887, when it was shown that in consideration of #51.98 premium and an additional deposit of $26.77 in cash, on December 10, 1880, the defendant insured the plaintiff’s Belmont Oil Works to the amount of #1,575 for one year from December 1, 1880, accoi'ding to the terms and conditions of the policy, some of which were as follows, to wit :
“2. This company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor be actually paid and the deposit is made.”
“ 7. The use of general terms or anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.”
“ 12. It is expressly understood and mutually agreed, that the person or persons, if any other than the assured, who have procured this insurance to be taken by this company, shall be deemed the agent or agents of the assured and not of this company, in any transactions relating to this insurance, and if the premium on this policy shall be paid to any person or persons other than the duly appointed or authorized agent of this company, such payment shall be at the sole risk of the assured.”
“ And it is hereby mutually understood and agreed, by and between this company and the assured, that this policy is made and accepted in reference to the foregoing terms and conditions, and the by-laws of the company, which are hereby declared to be a part of this contract, are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for in writing.”
Certain of the by-laws referred to were as follows, to wit :
“ See. 10. All general and local agents or surveyors shall be appointed by the secretary, and shall be furnished with a certificate of his or their appointment with the seal of the company affixed thereto, setting forth the powers of such agents, and without said certificate no person shall be, or is, authorized to act as agent for this company.”
“ Sec. 24. No insurance, whether original or continued, shall be considered as binding until the cash premium shall have been actually paid to some duly authorized and commissioned agent of the company.”
“ Sec. 42. These, and all other by-laws hereafter adopted, shall not be abrogated, modified, or in anywise altered or added to, unless at a regular meeting of the board of directors, and all by-laws heretofore adopted by this company and inconsistent herewith are hereby repealed.”
Thomas J.. Lancaster, called for plaintiff, testified that he was an insurance broker, his business being to receive orders for insurance, place risks, receive the policies, deliver them to the assured, receive the premiums and to transmit them to the companies or their agents ; that in 1880 and 1881 he had charge of all the plaintiff’s insurance, and placed that on the Belmont Oil Works in eighteen or twenty companies; that he received the policy in suit from Robert Crane, the agent of the defendant company, and, on December 17, 1880, delivered it to the plaintiff and received a check from him for the amount of the premiums and deposits; that he afterwards received from Crane a bill or statement of the premiums, etc., due on policies issued to Elkins in three companies one of which was the policy in suit, the amounts, less commissions, aggregating $200.82, and on March 8, 1881, he gave Crane a check for $100, on account of the bill generally; and that he paid the balance of the bill on March 15th. “ Crane and I,” said the witness, “ settled for premiums sometimes in thirty, sometimes in ninety days. He was a broker and I was a. broker. I took him business and he gave me business. It depended on our accounts how I settled with Crane as the agent of tins company.”
The fire which injured or destroyed the insured property occurred on March 9, 1881.
Robert Crane, called for the plaintiff, testified that he was an insurance agent and broker; that in 1880 and 1881 he did business with the defendant company. The witness proceeded : “ About April, 1880, I became its agent for certain purposes. I had no certificate of appointment from the company. I never saw one. I wrote the company in reference to doing business. The secretary called to see me. It was arranged that I should send it business. In pursuance of that arrangement I sent applications for insurance, subject to their approval. All applications they approved they wrote up the policies and sent them to me as their agent or representative. They sent mo the Elkins policy. I received it in December, 1880, by mail from the company. I delivered it to Mr. Lancaster, as I received the order from him, and from him I collected the premium. I received §100 on March 8th on account of my bill, and on March 15th received the balance. I charged him with all the policies I delivered. I credited the company with all the policies sent and charged myself with the premiums. I was responsible for the premiums. They looked to me for the premiums. 1 placed the checks of Lancaster to my credit. I sent the company my check for the balance of my account on March 16th, which they returned to me. When I received the policy, I recorded it in my register and sent it to Mr. Lancaster. I examined the applications and forwarded this one to the Susquehanna M. Insurance Company, with a description of the property. They approved it and wrote the policy. After recording it in my register, I delivered it to Mr. Lancaster and charged him with the premium. At the close of the month I sent him a bill. We, the company and I, usually settled about the 15th of the month. I have in some cases remitted to the Susquehanna M. Insurance Company before I received premiums, to close the account. I was responsible to the company for the premium or the return of the policy.” On cross-examination, the witness stated that he had received a letter from Mr. Huntzinger, “ informing me that the company was not keeping a general running account with mo. They wrote for my account. They asked for reports and remittance of premiums. I cannot now produce the letters making these requests, but I kept an account on my books and sent statements and checks for balances.”
On behalf of the defendant, B. K. Huntzinger testified that in 1880 and 1881 he was secretary of the defendant company and had charge of the appointment of agents and of giving them instructions; “ At no time was there an arrangement of Mr. Crane with our company as to business. The company never issued to him a certificate of appointment as agent. I received applications for insurance from Mr. Crane..... His applications were signed by him, as agent for the applicant.....It is not true that the company held Crane personally responsible for the premiums on the policies sent him. We never made any demand on him for money which he had not collected. He always remitted after he had collected. He gave us no written agreements to be responsible for uncollected premiums.....The first remittance we received on account of Elkins’s premium was about March 17 or 18, 1881. That is the check. We refused to accept it and returned the check to Crane.....Mr. Crane did not remit on general account; he' always remitted specially for certain premiums. When a check covered several premiums, the letter always stated what premiums.” On cross-examination the witness testified that the company allowed Crane the usual commission of 25 per cent to all brokers who brought the company business.
At the close of the testimony, the court, Fell, J., charged the jury as follows:
I can probably best direct your attention to the law governing this case by first answering the defendant’s points, which are :
1. That under the terms of the policy, the company defendant would not be liable thereon until the premium was actually paid and the deposit made by the plaintiff, and that there is no evidence in this case that the premium was so paid or deposit made, and therefore the policy never took effect, and the plaintiff cannot recover.
Answer : I decline to so instruct you.1
2. That under the terms of the policy in suit the payment of the premium thereon to any person, other than the duly appointed or authorized agent of the company, was at the sole risk of the assured, and the company was not made liable by such payment.
Answer: I affirm this point.
3. That there is no evidence that either Lancaster or Crane was the duly appointed or authorized agent of the company, or acted in any other capacity than that of a broker, in effecting the insurance in question ; and therefore, both in law and under the terms of the policy, they were the agents of the plaintiff and not the agents of the defendant.
Answer: There is no testimony showing that Lancaster was the agent of any one, except of the plaintiff, Elkins. But there is evidence that Crane represented the company in some capacity. What that was, and what were its scope and extent, are the questions which you must decide.3
4. That there is no evidence in this case that Robert Crane was authorized to bind the company defendant by the acceptance of the premium upon the policy, after the occurrence of a loss.
Answer: I affirm this point.
5. That the plaintiff is bound by the provisions of the bylaws of the company defendant, which are made by the policy a part of the contract.
Answer : I affirm this point.
6. That by the provisions of the by-laws of the company defendant no person is authorized to act as agent for said company without having been furnished with a certificate of appointment with the seal of the company affixed thereto setting forth the powers of such agent; that the evidence in this case is that Robert Crane had no such certificate, and therefore he was not authorized to act as agent for said company and could not bind it in any way.
Answer : As I have said, there is testimony that Crane was authorized to act for the company in some respects; to forward applications, to receive and deliver policies and to collect the premiums. If his authority was given verbally and they ratified what he did under it, they would be bound by it. They cannot accept the benefit and refuse the burden.3
7. That the plaintiff was bound to inform himself as to the authority of the person with whom he was dealing, and the company defendant cannot be held liable for the unauthorized acts of a third party.
Answer: I affirm this point.
8. That, where a party seeks to avail himself of the acts of an alleged agent, the burden of proof lies on him to establish both the agency and the extent of it.
Answer: I affirm this point.
9. That the condition of the policy in suit, which provides that nothing less than a distinct specific agreement, clearly expressed and indorsed on the policy, can be construed as a waiver of any printed or written restriction therein, was binding upon the plaintiff, whether the alleged waiver was by an officer or agent of the company.
Answer : Mr.-Crane, if agent, had no authority to waive any condition in the policy, but the company could waive a condition as to prepayment inserted for its own benefit, and such waiver need not be written nor indorsed on the jjolicy.4
10. That under all the evidence in this case, the verdict of the jury must be for the defendant.
Answer: I decline to so instruct you.5
11. The payment of the premium by the plaintiff to Lancaster, his own broker and agent, was not a payment to the company defendant, nor to any agent of the defendant, and such payment was not a compliance with the condition of the policy, requiring actual payment of the premium to the company or its agent before the policy should be binding upon the defendant.
Answer: I affirm this point.
12. Even if the jury is satisfied that Crane was the agent of the defendant to collect the premium, the evidence is distinct and uncontradicted, to the effect that he had no authority to waive any of the conditions of the policy; and inasmuch as the testimony shows conclusively that the premium was not actually and fully paid to him until after the fire, the plaintiff cannot recover.
Answer : I decline to so instruct you.6
13. Before the plaintiff can recover upon the theory that Crane had obligated himself to pay the premium to the company, and that the company had agreed to accept Crane’s personal credit instead of the actual payment in cash, he must show that Crane had made himself legally responsible to the company for the premium, and as such legal responsibility, under the statute of frauds, can only be established by a memorandum in writing, which it is not pretended was ever given by Crane to tbe defendant, the plaintiff cannot recover upon any such theory as is suggested in this point.
Answer : 1 decline to instruct as requested in this point.7
14. Before the plaintiff can recover upon the theory that the company had agreed to accept Crane’s credit instead of actual payment of the premium as required by the policy, he must show by a preponderance of evidence that Crane, for some good consideration, had made himself personally and legally responsible for payment of the premiums upon policies which he delivered to the assured, and that the company had agreed to accept his personal legal responsibility, in lieu of actual payment; and unless the jury is satisfied that this fact is established by a preponderance of evidence in the present cause, the verdict, so far as this branch of the case is concerned, should be for the defendant.
Answer: I affirm this point.
15. Before the plaintiff can recover upon the theory suggested in the foregoing point, he must, in addition to the facts therein suggested, establish the fact that Elkins, the plaintiff, or his broker, Lancaster, had notice of thq alleged arrangement by which Crane’s credit was to be accepted in place of actual payment, and that they relied upon the same in withholding the actual payment until after the fire.
Answer: I affirm this point.
This is an action on a policy of insurance issued by the defendant, the Susquehanna Mutual Fire Insurance Company, to William L. Elkins. The policy is dated December 10, 1880, and is for $1,575. The fire occurred March 9, 1881, and the loss apportioned to this policy is $710.86. There is no dispute about this, and the only question is whether the policy bound the company.
Mr. Lancaster and Mr. Crane were both insurance brokers, and [Mr. Crane represented for some purpose, at least, the Susquehanna M. Insurance Company]8 and Mr. Lancaster represented Mr. Elkins for the purpose of procuring insurance. Lancaster applied for and received the policy in question some time after its date, December 10th, and delivered it to Mr. Elkins on December 15th, and on the 17th he was paid for it by Mr. Elkins. He had a running account with Mr. Crane for premiums on policies received, and on the 8th of March, the clay before tbe fire, sent Mm a check for $100, and on the 15th a check for the balance, closing the account. March 16, 1881, Mr. Crane sent a check to the company, which paid them for this policy in full, but wliich they declined to receive.
Mr. Lancaster was clearly the agent, of Mr. Elkins in the transaction, and his failure to pay was the failure of his principal. Mr. Crane gave credit to Mr. Lancaster, and the case turns to his, Mr: Crane’s, relation to the company.
The policy contained this stipulation : “ This company shall not be liable by virtue of this policy, until the premium therefor be actually paid.” This stipulation was for the benefit of the company, and the company could waive it, if it desired to do so.
[If the company, notwithstanding this condition, had delivered the policy to Mr. Elkins or Mr. Lancaster, without payment, and accepted in lieu thereof the promise of either to pay in the future, either at a fixed time or on the settlement of their mutual account, the policy would have been in force. This is what Mr. Crane did. Had he authority from the company to do this ?]„9
Lancaster had a running insurance account with Mr. Elkins, settled every three months. Crane had a running insurance account with Lancaster, settled at their convenience. The company had an account with Crane of this nature. They received from him applications and accepted or rejected them as they saw best. They sent him policies, on wliich he was to collect premiums or return the policy.- He sent statements with remittances each month. He says he marked those not paid and sometimes advanced small premiums. Sometimes he was in their debt and sometimes they were in his. There is a dispute as to his relations to the company and the course of business between them. The truth of the matter you must determine from the testimony.
[If the company agreed to substitute the personal liability of Mr. Crane for the security which this clause of the policy afforded, and to dispense with the requirement that the premium should be prepaid, the policy was in force at the time of the fire; otherwise, it was not.] 10
The jury returned a verdict in favor of the plaintiff for •$959.86. A rule for a new trial having been refused, judgment was entered on the verdict, when the defendant took this writ and assigned as error:
1-7. The answers to the defendant’s points.110 7
8-10. The parts of the charge embraced in [ ] 81010
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
