Armstrong v. State Ins. Co.

• Decision Date: 11 June 1883
• Citation: 16 N.W. 94,61 Iowa 212
• Parties: ARMSTRONG v. THE STATE INS. CO
• Court: Iowa Supreme Court

16 N.W. 94

61 Iowa 212

ARMSTRONG v. THE STATE INS. CO

Supreme Court of Iowa, Des Moines

June 11, 1883

Appeal from Page Circuit Court.

THIS is an action upon an alleged contract of insurance. The cause was referred to J. M. Bartholomew, Esq., who found and reported the facts as follows:

"1st. That the defendant is and was a corporation as alleged in plaintiff's petition.

"2nd. That on February 2, 1880, one N. B. Easton was the agent for defendant, with authority to take applications for insurance in the defendant company, and to receive and receipt for the premiums therefor, and forward such applications and premiums to the defendant company, and to receive from said company policies of insurance when issued, and deliver same to the assured; and I find said agent had no other or further powers, real or apparent.

"3rd I find that on the second day of February, 1880, plaintiff executed and delivered to said Easton, as agent as aforesaid an application for insurance in the defendant company on certain property in Shenandoah, in the amount of $ 500, for a term of six months, and that exhibit "A," attached to plaintiff's petition, is a true copy of such application.

"4th. That as payment for the insurance contemplated by said application, plaintiff gave to said Easton as such agent, and said Easton received, two dollars in goods, and a promissory note for eight dollars, and that exhibit "C" attached to plaintiff's petition is a true copy of such note, and that said agent gave plaintiff the receipt, a copy of which is attached to plaintiff's petition as exhibit "B."

"5th. That said application, note and receipt were filled up from printed forms by said agent Easton, or some one acting for him.

"6th. I do not find that said before-mentioned papers, or any of them, were executed in fulfillment of any pre-existing contract between plaintiff and any agent or agents of the defendant.

"7th. That the property payment of two dollars was retained by said agent, Easton, and the application and note were by said agent forwarded to the defendant by mail, at Des Moines Iowa, and that they were so forwarded by said agent before he had any knowledge of the loss hereinafter mentioned.

"8th. That on the night of February 3, 1880, the property mentioned and described in plaintiff's said application was without fault on the part of the plaintiff, totally destroyed by fire, and plaintiff thereby suffered a loss in excess of $ 500.

"9th. That on the morning of February 5, 1880, plaintiff's said application and note were received by the defendant at Des Moines, Iowa, and on the same day said application was by the secretary of defendant marked as rejected, and returned with said note to said agent, Easton.

"10th. That the reason assigned by said secretary at the time for rejecting said application was, that the defendant already had all the insurance in that row where said property was situated that it cared to carry, and I find that such excuse was legitimate and proper when measured by the rules of conservative and successful insurance; but I also find that defendant had been in the habit of carrying as large amounts as they would have had in the row where plaintiff's property was situated, in other and equally hazardous rows.

"11th. The evidence does not show that, at the time of such rejection, said secretary or any of the officers of defendant had actual knowledge that the property described in the application had been destroyed by fire.

"12th. That shortly after the loss by fire, the defendant's agent, Easton, offered to return to plaintiff the said note and the payment of two dollars, but the same was refused by plaintiff.

"13th. That the insurance applied for was for six months only, being a short rate, and that the premium tendered was not an adequate compensation for carrying the risk; but I also find that, at the time of the rejection of the application, no objection was made as to the time or rate.

"14th. That no policy of insurance was ever issued on plaintiff's said application by defendant.

"15th. That no proof of loss was forwarded to defendant by plaintiff within the time fixed in the policies issued by defendant.

"16th. That due proof of loss was subsequently made, to-wit, January 1, 1881 by plaintiff, and forwarded to defendant, and payment absolutely and unconditionally refused by defendant, on the ground of an entire absence of legal liability on its part."

Upon these findings the referee recommended judgment against plaintiff for costs, which was rendered by the court. The plaintiff appeals.

AFFIRMED.

W. P. Ferguson, for appellant.

Hepburn & Thummell, James McCabe and J. B. Johnson, for appellee.

OPINION

DAY, CH. J.

I. The plaintiff insists that the application, note and receipt set forth in the petition, constituted a valid and binding contract of insurance pending the issuance of a policy, or until the same had been acted upon by the company. The referee has found that Easton was the agent of defendant with authority to take applications for insurance, and receive and receipt for premiums, and forward applications and premiums, and receive from the company policies of insurance, when issued, and deliver them to the assured, and that he had no other or further powers, real or apparent. The evidence abundantly sustains this finding of the referee. Such an agent has no authority to bind the company by a contract of insurance. Such a contract would be beyond the scope of his powers. Dickinson County v. The...