Concordia Fire Insurance Company v. Mitchell

• Decision Date: 21 February 1916
• Docket Number: 198
• Citation: 183 S.W. 770,122 Ark. 357
• Parties: CONCORDIA FIRE INSURANCE COMPANY v. MITCHELL
• Court: Arkansas Supreme Court

183 S.W. 770

122 Ark. 357

CONCORDIA FIRE INSURANCE COMPANY v. MITCHELL

No. 198

Supreme Court of Arkansas

February 21, 1916

Appeal from Hempstead Circuit Court; George R. Haynie, Judge affirmed.

Judgment affirmed.

Allen Hughes and W. W. Hughes, for appellants.

1. There was no waiver of proof of loss. To bind appellants it is necessary that it be established that the person whose conduct is relied on to effect the waiver was, first, the agent of the companies, and, second, that he acted within the scope or the apparent scope of his authority. Foster had no power to adjust losses or waive proof of loss; nor any authority to bind the companies by introducing Casey as an adjuster. The prima facie case of Foster's authority was overcome by direct proof that he had no such authority. 100 Ark. 212; 60 Id. 532; 106 Iowa 229. Foster's introduction of Casey is merely hearsay evidence.

2. It is incompetent to establish agency, or its extent by proof of declarations of the alleged agent or his conduct in assuming to act as such. 10 Enc. Ev., p. 15, 22; 1 Mechem, Ag. (2 ed.), § 285; Ostrander on F. Ins. (2 ed.), § 48, p 174; 26 S.W. 381; 85 Ark. 252, 256; 93 Id. 603; 80 Id. 228; 46 Id. 222; 141 S.W. 205; 164 Ind 77; 147 Ala. 646. No ratification nor acquiescence is shown. 164 Ind. 77; 32 S.E. 291; 75 N.W. 923; 70 Neb. 510; 99 N.Y.S. 234.

3. The agency of one whose authority is in issue can not be shown by the declarations, admissions or recognition of an other agent unless it appears that the latter is one authorized to make such admissions, declarations and recognition. 91 Ga. 554; 106 Iowa 229. The burden of proof was on the appellee. 11 Okla. 585; 69 P. 938; 123 Ala. 667; 120 Ga. 247; 121 Mass. 439; 90 Iowa 457; 40 Neb. 700, 715; 16 Okla. 1.

Steve Carrigan, Jr., L. F. Monroe and W. H. Etter, for appellee.

1. If appellants' agent, Foster, was acting within the apparent scope of his authority and was consequently apparently authorized to act for appellants in regard to matters in which he undertook to act in dealing with appellee, then his acts are binding upon appellants. 115 S.W. 475-6; 97 P. 577; 52 Me. 389; 109 Minn. 440, 450; 124 N.W. 236; 12 P. 141; 86 S.W. 274; 108 Id. 355; 2 Corpus Juris, 572; 135 F. 636; 81 Vt. 420; 83 Ky. 246; 20 Okla. 576; 67 Am. St. 238; 60 Fla. 83; 103 Ark. 86; 111 Id. 237; 79 Id. 323; 94 Id. 227; 92 Id. 386; 97 Id. 564.

2. The acts and declarations of Foster and Casey were enough to satisfy the requirements of the policies as to proof of loss. A waiver is clearly shown. 108 Ark. 268.

3. The acts and admissions of an agent are available to charge the principal when they occur in the course of his employment, as part of the res gestae. 3 Wigmore on Evidence, § 1795; 1 Greenl. E., § 113; Jones on Ev., § 256; 165 S.W. 1154; 49 Ark. 215; 58 Id. 179; 63 Id. 93; 95 P. 218.

4. There is no error in the instructions. 96 U.S. 577; Ib. 234; 106 Id. 30; 53 Ark. 499; 24 Law Ed. U.S. 890; 42 Ark. 99.

OPINION

SMITH, J.

Appellee, who was doing business as the Rustic Novelty Company, brought suits against the appellant insurance companies on certain policies of insurance covering property which was destroyed by fire on July 11, 1914. There was prayer for the amounts of the policies and the statutory penalty and for attorney's fees. Separate suits were filed against each of the companies, but the same issue is involved in each case and the cases were consolidated and tried together.

No question is made as to the occurrence of the fire, or the extent of the loss. The policies sued on are standard form policies and each of them contained the usual requirement that the insured shall, in the event of loss sustained by fire, make due proofs of loss to the insurer within sixty days thereafter, and provides that, in case this is not done, the policy shall become void.

Appellee does not claim to have made proofs of loss, and the question in the case is whether that requirement has been waived. Immediately after the fire appellee reported the loss to one C. B. Foster, who was engaged in the insurance business under the name of the Hempstead County Insurance Agency, which agency had written both policies. Some time thereafter Foster called upon appellee, in company with a stranger to appellee, but who was introduced by Foster as Mr. Casey, the adjuster for the insurance companies, who had come to adjust appellee's loss under said policies. Relying upon this representation of Foster, appellee took Casey to the scene of the fire and directed him to the night watchman, who was in charge of the insured property at the time of the fire, and then, upon Casey's further request, furnished and delivered to him an itemized list of the property lost in said fire and the value of each article lost. Thereupon Casey expressed himself as satisfied with the proof of loss and informed appellee that settlement would be made with him within the course of a short time. Appellee then inquired of Casey if anything additional was required and was advised that nothing else was necessary and that the showing made was sufficient. Resting on this assurance appellee made no other proof of loss, but on September 2d wrote a letter to one H. B. Hart, of Memphis, Tennessee, an adjuster of the appellant companies, requesting an early settlement of his loss, but Hart made no reply to this letter until September 15, which was after the expiration of the sixty days allowed for the proof of loss.

It was not denied that Foster was appellant's agent and that he wrote, signed and delivered the policies to appellee; nor is it denied that he introduced Casey as the adjuster, who was there for the purpose of adjusting appellee's loss. It is insisted, however, that the proof in regard to Foster's agency shows that the extent of his authority was to solicit insurance, issue policies, and collect premiums, and that he had no authority to adjust losses and none to waive proof of loss, and that he had no power, therefore, to bind the companies by his act in presenting Casey to appellee as an adjuster, and that the evidence in regard to Foster's conduct is hearsay and that it was incompetent to establish the fact of agency, or the extent of the agency, by proof of the declarations of the alleged agent, or his conduct in assuming to act as such, and that error was committed in admitting proof of the acts and declarations of Casey.

Certain officers of the insurance company gave testimony which circumscribed Foster's authority to the matters above stated, but Foster himself testified that, in addition to his duties to receive applications for insurance, fix rates, countersign policies, deliver and renew policies of insurance, it was also a part of his duties under his agency to notify the companies of losses.

In the case of Citizens' Fire Ins. Co. v Lord, 100 Ark. 212, 139 S.W. 1114, it was said that a local agent who has power to effect insurance, countersign policies, and collect premiums, had also prima facie power to waive proof of loss. But appellants insist that no such presumption exists here for the reason that it now...