British America Assur. Co. v. Cooper
| Decision Date | 02 October 1899 |
| Parties | BRITISH AMERICA ASSUR. CO. v. COOPER. |
| Court | Colorado Supreme Court |
Error to Arapahoe county court.
Action by Jane O. Cooper, as executrix, against the British America Assurance Company. From a judgment for plaintiff, defendant brings error. Affirmed.
This action was originally brought by Job A. Cooper to recover for the loss of a building destroyed by fire, upon which plaintiff in error had issued a policy of insurance which would not expire by limitation until after date of loss. Since the case was brought to this court, the defendant in error has departed this life, and his executrix has been substituted in his place. Two defenses to the action were interposed by plaintiff in error: First, that the policy was null and void, because its local agents, through whom the insurance was effected, were also the agents of assured with respect to making the contract of insurance, and empowered to act in all matters relating thereto, which relationship was unknown to the company until after the destruction of the building; second, that the policy was canceled in accordance with its provisions, the unearned premium returned, and the policy surrendered to it, before the loss. To these defenses a replication was filed, putting in issue their averments. Upon the trial of the cause the uncontroverted evidence was to the effect that the agents of the company were the agents of assured in the erection of the building in question, and also for the purpose of renting it and collecting the rents. In response to a general question respecting the duties of these agents in so far as they were authorized to represent the assured, he replied: '* * * To procure insurance * * * and collect the rents.' With respect to the insurance represented by the policy upon which this action is brought the uncontradicted evidence is: That, after the building was completed, assured instructed these agents to procure insurance upon it. That they informed him that they expected within a short time to secure the agency of one or more companies, and requested him to permit them to insure in the companies which they might so represent, to which he assented. This evidence was received over the objection of plaintiff in error. That later they were appointed the representatives of the company, and, in pursuance of the understanding with the owner of the building, issued its policy, and received the premium by retaining from moneys collected as rent the amount thereof. That subsequently the company concluded to withdraw its business from the town in which this property was situated, and notified the agents who had issued the policy to cancel it in accordance with its terms on this subject, the unearned premium being returned to them by the representative of the company who sent them this notice, in response to which they replied they would issue the required notice as requested. That they canceled the policy, which had remained in their possession, and forwarded it to the representative of the company who was in immediate authority over them, retained the unearned premium, but did not credit it to the assured, or notify him regarding the cancellation. Within a short time thereafter the building was destroyed by fire. It appears that the...
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