Kroeger v. Pitcairn

• Decision Date: 20 November 1882
• Citation: 101 Pa. 311
• Parties: Kroeger <I>versus</I> Pitcairn.
• Court: Pennsylvania Supreme Court

101 Pa. 311

Kroeger versus Pitcairn.

Supreme Court of Pennsylvania.

October 13, 1882.

November 20, 1882.

October 13th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

ERROR to the Court of Common Pleas No. 2 of Allegheny county: Of October and November Term 1882, No. 110.

COPYRIGHT MATERIAL OMITTED

Dalzell (with whom was Hampton), for the plaintiff in error. —It was not necessary in the above action for the plaintiff to show knowledge on the part of the defendant of his want of authority and an intent to defraud: Thomson v. Davenport, 2 Sm. & L. C. 364; Smout v. Ilberry, 10 M. W. 1; Collen v. Wright, 7 El. & Bl. 301; S. C., 8 El. & Bl. 646; Draper v. Massachusetts Steam Heating Co., 5 Allen 338; Jefts v. York, 10 Cush. 392; Baltzen v. Nicolay, 53 N. Y. 469; White v. Madison, 26 N. Y. 117; Dung v. Parker, 52 N. Y. 494; Layng v. Stewart, 1 W. & S. 226; Hampton v. Speckenagel, 9 S. & R. 222; McConn v. Lady, 10 W. N. C. 493. It is clear that defendant cannot escape liability on the ground that plaintiff's action is founded only upon the defendant's statement of his individual opinion as to a question of law. Defendant did not pretend to be giving an opinion. He stated a fact.

The existence of a custom such as is claimed might, perhaps, excuse the defendant in believing that he had authority to contract with the plaintiff as he did; but the fact still remains that he had no such authority, and if our former position be correct the want of authority is not helped at all by the honesty of the agent. His liability is the same, whether he acted upon or without an honest belief.

Schoyer (with whom was McGill), for the defendant in error.—Defendant did not attempt to waive the conditions of the policy nor could he have done so. He was merely stating what was the custom of insurance companies: Franklin Ins. Co. v. Updegraff et al., 7 Wright 350; People's Insurance Co. v. Spencer, 3 P. F. S. 355.

There being no evidence that defendant represented he had authority which he did not possess, or did anything in excess of any authority which he did possess, what he did say becomes a question of good faith: Duff v. Williams, 4 Norris 495; Dilworth v. Bradner, Ib. 238.

There was no knowledge on the part of the defendant that he was exceeding his powers and no evidence of any intent on his part to deceive: Graham v. Hollinger, 10 Wright 55; Huber v. Wilson, 11 Harris 178; Bokee v. Walker, 2 Harris 139; Boyd's Executor v. Brown, 6 Barr 310; Hubbell v. Meigs, 50 N. Y. 480; Waekeman v. Dalley, 51 N. Y. 27; Smith v. Calvert, 44 Ind. 242; Frenzel v. Miller, 37 Ind. 1; Sawyer v. Mayhew, 51 Me. 398. These are essential to the maintenance of such an action as the present one.

Mr. Justice STERRETT delivered the opinion of the court, November 20th 1882.

The subject of complaint, in both specifications of error, is the entry of judgment for defendant non obstante veredicto. It is contended that upon the facts established by the verdict, judgment should have been entered thereon in favor of plaintiff. The jury were instructed to return a verdict for the amount claimed by him, if they were satisfied the allegations of fact contained in the point presented by him were true. In view of this, the finding in his favor necessarily implies a verification of the several matters specified in plaintiff's point, and hence it must now be regarded as containing a truthful recital of the circumstances connected with the delivery of the policy and payment of the premium.

The transaction, as therein detailed, clearly amounted to a mutual understanding or agreement between the parties that the stock of merchandise, mentioned in the policy, should include one barrel of carbon oil; in other words, that the plaintiff should have the privilege of keeping that quantity of oil in connection with and as a part of the stock insured, without thereby invalidating his policy. It is impossible to regard the transaction in any other light. The jury found that plaintiff "took the policy upon the faith" of the representations made by defendant. These representations were not merely expressions of opinion as to the meaning of the policy. On the contrary, the defendant, acting as its agent and assuming authority to speak for the insurance company, asserted without any qualification that when carbon oil was kept as plaintiff was in the habit of keeping it — a single barrel at a time — it was unnecessary to mention the fact in the policy, or otherwise obtain the consent of the company; that no notice is ever taken of it unless "it is kept in large quantity — say several hundred barrels. In that case, when it is wholesale, it should be mentioned; but, as long as it is kept, not more than a barrel in the store at a time, it is considered as general merchandise and is not taken notice of in any other way." Such was the language employed by defendant, evidently for the purpose of dispelling any doubt that existed in the mind of the plaintiff and inducing him to accept the policy and pay the premium; and, to that end at least, it was successful. What was said and done by defendant, in the course of the transaction, amounted to more than a positive assurance that the accepted meaning of the policy was as represented by him. In effect, if not in substance, his declarations were tantamount to a proposition, on behalf of the company he assumed to represent, that if the insurance was effected it should be with the understanding that a barrel of carbon oil was included in and formed part of the insured stock of merchandise, without being specially mentioned in the policy. The plaintiff doubtless so regarded his declarations, and relying thereon, as the jury has found, accepted the policy on the terms proposed, and thus concluded, as he believed, a valid contract of insurance, authorizing him to keep in stock, as he had theretofore done, a small quantity of carbon oil. It was not until after the property was destroyed that he was undeceived. He then discovered that, in consequence of defendant having exceeded his authority, he was without remedy against the company. Has he any remedy against the defendant, by whose unauthorized act he was placed in this false position? We think he has. If the president or any one duly authorized to represent the company had acted as defendant did, there could be no doubt as to its liability. Why should not the defendant be personally responsible, in like manner, for the consequences, if he, assuming to act for the company, overstepped the boundary of his authority and thereby misled the plaintiff to his...