Grady v. American Cent. Ins. Co. of St. Louis

• Decision Date: 31 May 1875
• Citation: 60 Mo. 116
• Parties: JAMES GRADY, Plaintiff in Error, v. THE AMERICAN CENTRAL INSURANCE COMPANY OF ST. LOUIS, Defendant in Error.
• Court: Missouri Supreme Court

60 Mo. 116

JAMES GRADY, Plaintiff in Error,

v.THE AMERICAN CENTRAL INSURANCE COMPANY OF ST. LOUIS, Defendant in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Buchanan Circuit Court.

Ranney and Vories, for Plaintiff in Error.

I. Whether the execution of the policy of defendant in this suit was sufficiently proven, or whether the acts of the agent Corby, if informal on account of the manner in which such policy was signed, were ratified or waived by the defendant, were questions solely for the consideration of the jury. (Benton vs. Klein, 42 Mo., 98; Deere vs. Plant, 42 Mo., 60; McFarland vs. Bellows, 49 Mo., 311; Wannell vs. Kem, 57 Mo., 478; Allen vs. Jones, 50 Mo., 205; Sto. Ag., §§ 252, 253.)

II. Persons dealing with agents clothed with apparent authority, have the right to rely upon their acts and declarations respecting matters within the scope of their apparent authority. (Sumner vs. Saunders, 51 Mo., 89; DeBaum vs. Atchison, 14 Mo., 543; Howe Machine Co. vs. Snow, 32 Ia., 433; Brook vs. Jamison, 55 Mo., 505.)

III. The authority of the agent need not be proved by an express contract of agency, but may be shown by the habit and course of business of the principal. (Johnson vs. Jones, 4 Barb., 373; Perkins vs. Wash. Ins. Co., 4 Comst., 645; Com'l Bank vs. Morton, 1 Hill, 501: Tradesman Bank vs. Astor, 11 Wend., 87; Franklin vs. Globe M. Ins. Co., 50 Mo., 461, and cases cited; Sto. Ag., §§ 252, 253.)

Doniphan & Reed, for Defendant in Error.

I. The court did not err in sending out the jury during the examination of J. A. Corby. The question was not the weight of evidence, but the admissibility of the policy. The proof of this question was of course addressed exclusively to the court.

II. The court did not err in refusing to allow the policy to be introduced. There was no proof of its execution. (17 Mo., 440.)

III. There was no proof of ratification, with a full knowledge of all the material facts, by the company. (Sto. Ag., § 250.) Castle, the only witness for plaintiff on this point, said he did not know whether the premium that was paid in was ever sent to the company, or that the company knew, before they were advised of this loss, that there was such a policy in existence.

IV. The signing of this policy was not a mere ministerial act, such as an agent may properly delegate, but required judgment, care and skill, such as the agent alone could exercise. (45 Mo., 221; 1 Hill, 501.)

VORIES, Judge, delivered the opinion of the court.

This action was founded on a policy of insurance charged to have been executed and delivered to plaintiff by defendant, in which plaintiff's house, described in the petition, was charged to have been insured against loss by fire, to the value of eighteen hundred dollars, for a premium then paid of thirty-six dollars.

The petition was in the usual form, averring a loss by fire, to the full amount of the policy, and a failure of defendant to pay, etc.

The defendant filed its answer to the petition, in which it set up several defenses to the plaintiff's action, among which were the following: “The defendant states that it is not true that by its policy of insurance, dated April, 18th, 1872, in consideration of the sum of thirty-six dollars, paid by plaintiff to defendant, it did insure plaintiff against loss by fire, to the amount of eighteen hundred dollars, or any other sum.”

Defendant denies that it ever executed or delivered the policy, as set out in the petition. Defendant denies that plaintiff ever paid the sum of thirty-six dollars, or that it ever received such sum or any other sum for the consideration of the insurance of the property as specified in the petition, or any other property of plaintiff.

For further answer, defendant states, that on the 18th day of April, 1872, it had in the hands of its agent at St. Joseph, Mo., policies signed in blank, to be filled out and signed by said agent, who at that time was J. A. Corby, and when the same were signed by him and the premiums paid to him, the policy or policies were to become binding upon it, if delivered, and that on the said day one of these policies came into the possession of one Castle, a stranger to defendant, who signed the name of such agent to the policy, and without any authority of defendant, delivered the same to plaintiff. Defendant states, that by the terms of said policy it was not to be binding until signed by said Corby, and that at the time plaintiff obtained it, he well knew that the same was not, nor has it yet been signed by said Corby, who was alone authorized to sign the same at St. Joseph.

“Defendant denies that at the time stated in the petition, either at the date of the policy or the destruction of the property, it was worth eighteen hundred dollars, or more than eighteen hundred dollars. And for further and additional matter of defense, defendant states that said policy was issued upon the property to be occupied as a boarding house, and by the specifications contained on the face of such policy, it was stipulated, that in case the property insured became vacant and remained so, without the consent of defendant indorsed on said policy, it became void; and it alleges that a long time prior to such fire the said building became and was permitted to remain vacant without the consent of defendant, by reason of which said policy became void and of no effect.”

The defendant also set up several other special matters of defense to the plaintiff's action, but which it is not necessary to set out here in order to a proper investigation of the points raised by the record of the case.

A replication was filed, putting in issue all of the affirmative averments in the defendant's answer. The answer was verified by affidavit. Afterwards the case came on for hearing, and a jury was impaneled to try the issues in the case.

The plaintiff, on his part, offered in evidence the policy of insurance sued on, and which was alleged to have been executed by the defendant. The policy was objected to as evidence by the defendant, on the ground that its execution had not been proved. This objection was sustained by the court, and the policy excluded.

The plaintiff then introduced evidence for the purpose of proving the execution of the policy by the defendant, which evidence was to the following effect: James Grady, the plaintiff, testified that a Mr. Castle first gave him the policy; that he was with Joseph Corby in the insurance business; that he paid the $36 mentioned in the policy; that $20 was paid to Castle at the time he gave witness the policy; and that he afterwards paid Corby $16, which was the remainder of the premium money. A short time after Castle gave the policy to plaintiff he saw Mr. Corby, and the latter asked witness where his policy was. Witness told him it was at home. Corby told witness to bring it up to him,--which witness did. Corby took the policy and kept it for a day or two, and then gave it back to witness, who asked him if it was all right, and he said it was. It was then that witness paid him the $16, and he delivered the policy to witness. Witness told Corby at that time that he had paid twenty dollars of the premium to Castle, and he replied that it was all right. Witness could not read, and when Corby delivered the policy to him he thought his property was insured, and paid him the remainder of the premium money. At the time that Castle first delivered the policy to witness, Corby was not present; but Castle told witness that he and Corby were in partnership in the insurance business, and represented defendant.

Thomas Calligan testified that he was well acquainted with plaintiff, Joseph Corby, and Mr. Castle; that Corby told witness that the policy to Grady, in question, was all right; that Corby and Castle were in the same office; that to witness' knowledge Castle issued a great many policies signed just as this one to plaintiff is signed; that he issued to witness three policies for a Mr. Powers, signed just as this one is signed--thus, “Corby______Castle”; that witness paid the premiums on these policies. Witness was here shown the report sent by Castle for Corby, to the company, and he identified the policies, reported in this report and sent to the company, as the policies issued to him by Castle, for the benefit of said Powers. Witness testified that some of the policies reported to the company by Corby were signed and issued just as this policy was signed in favor of plaintiff. Witness, on cross-examination, stated that the conversation he had with Corby about this policy was after the loss, and after Corby had ceased to be the agent of the defendant.

James Wolfolke testified that he knew Mr. Corby, and remembered the time Castle was in the office with Corby. Castle was in the habit of signing policies just as the policy to plaintiff is signed. The policies were so signed by Castle in Corby's presence in the office; they were working together. After Castle left Corby, witness acted as sub-agent with Corby. Witness knew about the burning of plaintiff's house; was acting for the defendant at that time with Corby. Witness notified the company, and they sent an agent up, who, with witness, examined into the burning of the house, and had estimates made of the value of the house, and the cost of re-building, etc. After these examinations, the special agent and witness looked in the register of the company, kept by the local agent at St. Joseph, and could not find this policy on the register. The policies spoken of by Calligan, issued for Powers, were on the register. The agent then denied any responsibility on the part of the company for the loss because the policy was not entered on the books and reported to the company.

Other witnesses testified as to the habit of Corby and Castle in issuing policies, in which Castle signed Corby's name, just as was done in the case of the policy to plaintiff, and of Corby receiving the premiums thereon.

Peter B. Castle was also examined,...