Insurance Company v. Johnson
| Decision Date | 01 March 1854 |
| Citation | 23 Pa. 72 |
| Parties | Insurance Company versus Johnson. |
| Court | Pennsylvania Supreme Court |
Little, for plaintiff in error.—It was contended that the absence from the state, which will render the former testimony of a witness admissible, must have the character of permanence. It was contended that the instructions and by-laws should have been admitted, in order to show that the insurance of the property in question was unauthorized. That the agent had not power to bind the company in this matter, reference was made to 4 Barr 185. The law will not imply the assent of a principal to what he does not know. But if the insurance was declined, the company would be liable only to refund. The agent had only authority to receive proposals and transmit them to the office of the company. In the case of Lightbody, in 23 Wendell 18, the agent was appointed for "effecting insurances," and he gave an unconditional receipt for the premium. Case in 4 Cowen 645, referred to. The case of Hamilton v. L. M. Ins. Co., 5 Barr 339, not in point.
W. H. Jessup and W. Jessup, for defendants in error.—Wickham, the agent, had no family, and never had a permanent residence in this state, and was at the time in Washington City. The admission of such testimony is much a matter of discretion with the Court: 7 Watts 309; 3 W. & Ser. 293; 8 Ser. & R. 387; 10 Barr 418. There was no evidence that the "instructions to agents," or the "by-laws" were known to the plaintiffs. The company cannot set up in defence the mala fides of their agent in failing to transmit the application. The case of Hamilton in 5 Barr 339, is in point.
This is an action on a contract to insure, and the question whether or not there was any insurance depends very much upon the authority of the company's agent, through whom the business was transacted. He was appointed "agent and surveyor" of the company, and "authorized to take applications for insurance, and receive the cash percentage to be paid thereon." Now, it does not seem easy to make it plainer, that this is not an authority to bind the company by effecting insurances. He was to survey property proposed to be insured, as we infer from the name of his office, and to receive applications or proposals for insurance, and of course to transmit them to the company; but no word indicates that he could bind the company by accepting a proposition or making a contract of insurance for them. He might spring the game, not seize it.
It is argued that it has often been declared that taking a man's application, fixing the terms, and receiving the premium, are sufficient evidence of an insurance; and so they are, when it thereby appears that the contract is complete, and nothing is wanting but the issuing of the policy. But when, as here, it is plain that the application and payment of the premium amount only to a proposal for insurance, we cannot make a...
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