Brown v. Ry. Passenger Assurance Co.
| Decision Date | 31 January 1870 |
| Citation | 45 Mo. 221 |
| Parties | MARTHA G. BROWN, Adm'x of the Estate of GEO. W. BROWN, deceased, Defendant in Error, v. RAILWAY PASSENGER ASSURANCE COMPANY, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to First District Court.
Edwards & Son, for plaintiff in error.
I. There is no proof that Brown was a passenger at the time he was killed, or that he was traveling on any conveyance of the kind described in the petition.
II. The question of vexatious refusal to pay, is a question of fact; and it was error in the court to instruct the jury that they had power to allow the plaintiff damages not exceeding ten per cent., in the absence of proof that the refusal to pay was vexatious. (23 Mo. 520-522; 36 Mo. 521; Gen. Stat. 1865, ch. 90, § 1.)
III. Miller, the agent of the defendant, had no right to delegate his authority to sell tickets to Church. Defendant is not liable for any ticket sold by Church, or any one else deriving his authority to sell from Miller.
IV. Unless Brown was a passenger on a conveyance, public or private, provided for the transportation of passengers, at the time he was killed, his policy did not cover the risk, and the defendant is not liable. (36 Mo. 435; 3 Kent's Com. 312, 318.)Ewing & Smith, for defendant in error.
I. Church was a sub-agent of defendant, employed by the agent Miller to transact and perform an act for the defendant that required no personal skill or discretion, and an act which, by implication and the ordinary course of business, the agent was justified and authorized to employ a sub-agent to perform.
II. The sale of the policy was the act of the agent Miller, and for which he was directly liable to his principal, the defendant. (Story on Agency, §§ 160, 161, and authorities cited.) By the statute, Church was, to all intents and purposes, the agent of defendant. (Gen. Stat. 1865, p. 403, § 5.)
III. A locomotive engine which transports a train of passenger coaches or cars, is eminently a “conveyance used for the transportation of passengers.” As well might it be said that the keel of a steamer was not a conveyance for the transportation of passengers, and that a passenger who was in the hold of a boat when the accident occurred, could not recover his insurance.
IV. Brown's ticket was a “general accident ticket,” for which he paid the highest price.
Although several questions have been discussed in the argument of this case, there is really but one requiring any particular consideration. The action was to recover the sum of $5,000, the amount of a policy issued by the defendant, insuring the plaintiff's intestate against death by accident for the period of thirty days.
The ticket covering the insurance policy was in these words: “The Railway Passenger Assurance Company of Hartford, Conn., will pay the owner of this ticket twenty-five dollars per week in case of personal injury causing total disability, for a period not exceeding twenty-six weeks, or the sum of five thousand dollars to his legal representatives, in the event of his death, from personal injury, ensuing within three months from the happening thereof, when caused by any accident while traveling by public or private conveyance, provided for the transportation of passengers in the United States or British North American possessions, it being understood that this policy covers no description of war risk.”
Miller was the agent of the defendants for the sale of tickets; and the ticket was purchased by Brown, the deceased, of Church, the clerk of Miller, who transacted his business and sold most of the tickets. Brown, at the time of purchasing the ticket, was an engineer on the Pacific Railroad, engaged in running trains west of Jefferson City, and, in a short time after the purchase of the ticket, and within the time covered by the policy, he was killed, when so engaged, by an accident occurring on the road.
It is in evidence that, when the ticket was sold, defendant's agent knew that Brown was an engineer; and Miller testifies that he had no instructions not to sell to employees of the railroad till after Brown's death. It is also shown by the evidence that the company had, and sold, two classes of tickets. The one was known as the “traveler's risk,” the other was the “general accident.” The latter was the highest price. The ticket sold Brown was the “general accident,” for which he paid the highest price. Upon these facts plaintiff had judgment in both courts below.
The first ground insisted on by the counsel for the plaintiff in error is that the contract and sale was void, because Miller was the agent of the company, and he had no authority or right to delegate the power to Church to sell; that Church was not known to the defendant, and it was, consequently, not bound by his acts. It is without doubt a settled principle in the law of agency that where an authority is conferred requiring skill or discretion on the part of an agent, and no power of substitution is given, there the agent must act in person, and the principal would not be bound by any act of a sub-agent. But it is not perceived that the doctrine has any application to this case. These tickets insuring against accidents are made out and signed at the company's principal office, and transmitted to their various agencies, to be sold indifferently to all who apply for them. The agent does nothing more than deliver them to the applicant and receive pay for them. The person buying them takes them subject to the printed conditions, and, if he violates the conditions, he incurs the hazard of losing all the benefits. As well...
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