Bell v. Peabody Ins. Co.
| Decision Date | 30 March 1901 |
| Citation | 38 S.E. 541,49 W.Va. 437 |
| Parties | BELL v. PEABODY INS. CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. An insurance agent cannot contract for insurance so as to bind his company without real or apparent authority therefor.
2. Such apparent authority must be based upon something tangible such as the possession by the agent of blank policies signed by the officers of the company, or the declarations of the agent to the effect that he has such authority, coupled with the fact that such authority has been recognized by the company by issuing policies on such contracts, or by permitting the agent to so continue its business after it has notice of such representations.
3. In such case, to constitute a complete oral contract, the minds of the insured and the insurer must come together in mutual agreement on every material point constituting a contract.
Appeal from circuit court, Greenbrier county; J. M. McWHORTER, JUDge.
Bill by Henry T. Bell against the Peabody Insurance Company. Decree for defendant, and plaintiff appeals. Affirmed.
Preston & Wallace, for appellant.
John W Harris, for appellee.
This is a suit in chancery, instituted by Henry T. Bell in the circuit court of Greenbrier county against the Peabody Insurance Company, a corporation, for the enforcement of specific performance of an oral contract of insurance alleged to have been made on the 31st of July, 1897, by J. W. A Ford, as agent of the defendant company, whereby he agreed for and on behalf of said company to insure the stock of goods of said plaintiff in the said company in the sum of $1,500, in addition to $3,500, which plaintiff already had on said goods. Plaintiff alleges in his bill that on said 31st day of July, 1897, he applied to said agent for said insurance, and said agent undertook to and did insure said goods in said defendant company for the sum of $1,500 at the rate of $1.75 per $100, the premium at said rate amounting to the sum of $26.25, and that by agreement plaintiff was given 30 days within which to pay said premium, and said agent agreed that he would fix up said insurance that evening, the 31st of July; that, by reason of said contract to insure plaintiff made no effort to get additional insurance in any other company, and relied upon said contract for the additional insurance; that, but for said contract, plaintiff would have secured, as he easily could have done, said additional insurance in some other good and reliable company that on the morning of the 3d of August, 1897, about daylight, his stock of goods was destroyed by fire,--a total loss; that he immediately notified and informed said defendant company of said loss, as required of parties insured in case of loss; that within the 30 days agreed upon for the payment by plaintiff of the premium on said insurance plaintiff made a lawful tender to said Ford, agent, of the $26.25 premium, in full payment thereof, but said agent declined and refused to take it, and still refused; that plaintiff had ever been, since said tender was made, ready to pay the same; that defendant had declined and wholly refused to pay plaintiff the amount of said insurance, or any part of it, and that the whole of same was justly due him; that plaintiff was without remedy, save in a court of equity, and prayed that said agreement and contract so made on the 31st day of July, 1897, be specifically performed and carried into execution by the defendant; that it be compelled to pay plaintiff $1,500, the amount of said insurance, with interest from October 3, 1897, that being the day said loss would have been payable under the rules and regulations of the defendant company had said company not refused to comply with its said contract; and for general relief. Defendant filed its demurrer, and, without waiving its demurrer, tendered its answer, which is filed, plaintiff joining in the demurrer, and replied generally to the answer. The answer denied the material allegations of the bill; denied that Ford was the general agent of the defendant, averring that he was a mere application agent; that he was not authorized to contract with parties for insurance as alleged, nor to adjust rates, and, so far as defendant knew or believed, said Ford never assumed to do so; that he never had authority from defendant company to bind it by issuing policies in its name, or to contract to issue them; that his only authority was to solicit applications or proposals for insurance, to be submitted to the home office for acceptance or rejection by the company; that respondent was informed that in the particular instance said Ford did not contract, nor claim the power to contract, with plaintiff for insurance, but simply told him he would submit to the company a proposal made by Bell; that the proposal never was accepted, and no policy written by respondent for Bell, and filed with the answer a letter from plaintiff speaking of the matter as an...
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