Fidelity & Casualty Co. v. Haines

• Citation: 111 F. 337
• Decision Date: 07 October 1901
• Docket Number: 1,482.
• Parties: FIDELITY & CASUALTY CO. v. HAINES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

111 F. 337

FIDELITY & CASUALTY CO. v. HAINES.

No. 1,482.

United States Court of Appeals, Eighth Circuit.

October 7, 1901

Syllabus by the Court.

A statement which is detached from the material act pertinent to the issue, and which constitutes a mere narrative of a past transaction, is not a part of the res gestae, but is hearsay, and incompetent as evidence.

The admission by the local agent of an insurance company on the day after the alleged making by him of an oral contract of insurance, that the claimant was insured, is not a part of the res gestae, and is hearsay evidence as against his principal.

The opinion or conclusion of an agent relative to the legal effect of acts and transactions is not binding upon his principal unless the latter has authorized his agent to form and express an opinion on his behalf. A statement by the agent of an insurance company that a claimant is insured is such an opinion, and is incompetent evidence against his principal.

A stipulation in the contract of appointment of a local insurance agent that he shall receive as his compensation for all his services, including those adjusting losses, a certain commission on the premiums he secures, and that he will render these services, does not authorize him to adjust alleged losses or to admit the liability of his principal therefor, unless he is otherwise empowered so to do.

James C. Jones and H. C. Smyth (William C. Jones and Wash Adams on the brief), for plaintiff in error.

Edward L. Scarritt (Thomas Dolan, John K. Griffith, and Elliott H Jones, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge.

This was an action upon an oral contract to insure against burglary. There are two classes of such insurance. One consists of the insurance of personal property while in a safe, and is denominated safe-burglary insurance, while the other comprises the insurance of such property when it is not within a safe, and is called store or residence burglary insurance. The rates and contracts of the two classes of insurance differ. The controversy here arises over an alleged oral agreement to make a contract of safe-burglary insurance whose existence was denied by the company. At the trial it appeared that one Bigley was the local agent of the company at Joplin, in the state of Missouri, to procure safe-burglary insurance according to the rules and instructions contained in the company's manuals and rate books, but that he had no authority whatever to procure any insurance, make any contracts, or do any other acts relative to store-burglary insurance. There were two issues,-- whether Bigley's conversation with the plaintiff related to safe-burglary insurance or to store-burglary insurance (the plaintiff testified that it related to the former, Bigley testified that it related to the latter); and whether or not the conversation was a contract of insurance or a mere negotiation preliminary to a written contract to be subsequently issued.

At the opening of the trial, without any evidence that Bigley was actually or apparently authorized to make any contracts or do any acts for the company, the defendant in error proceeded to testify that he had a conversation with him relative to safe-burglary insurance. Objection was made to this testimony that it was incompetent without proof of the authority of Bigley. The court so held, but nevertheless overruled the objection with the remark that he would strike out the testimony if the authority of this agent was not established. Thereupon the defendant in error testified, in effect, that on June 29, 1899, Bigley solicited him to take safe-burglary insurance, stated the rates, the amount of insurance he was to have, the length of the term, and the amount and time of payment of the premium, and made a memorandum of various facts about his stock of goods, from which Haines expected a policy of insurance to be forwarded to Bigley at Joplin, Mo by some general agent of the company at St. Louis, to be delivered to the defendant in error. On the night which followed the day of this conversation the state of the defendant in error was burglarized. Two witnesses were permitted to testify that on the following day Bigley admitted to them that the defendant in error was insured. This testimony was expressly objected to on the grounds that the agent's authority had not been shown and that it was only his conclusion, by which the company could not be bound. The court below held that the testimony was incompetent to prove a contract, but nevertheless admitted it 'for the purpose of corroborating, if the testimony is to that effect, the witness Haines in regard to the conversation had between himself and Bigley. ' This ruling is assigned as error, and it is difficult to perceive how this testimony could corroborate Bigley without tending to show that the contract to which he testified was made, and without thereby becoming incompetent, even in the view of the court below. The ordinary and logical sequence of proof required that the power of the agent should be established before his acts and admissions were received as evidence against his principal. Nor is the case of the defendant in error improved if the concession be made that the ruling upon...