Lavoie v. N. British & Mercantile Ins. Co.

• Decision Date: 23 June 1932
• Citation: 162 A. 182
• Court: New Hampshire Supreme Court
• Parties: LAVOIE v. NORTH BRITISH & MERCANTILE INS. CO.

162 A. 182

LAVOIE

v. NORTH BRITISH & MERCANTILE INS. CO.

Supreme Court of New Hampshire.

June 23, 1932.

On the motion of defendant the North British & Mercantile Insurance Company, for a rehearing.

Former result affirmed.

For original opinion, see 161 A. 376.

Thorp & Branch, of Manchester, for the motion.

ALLEN, J.

The motion argues a number of grounds for its support. In some measure indicating a misconception of the scope and effect of the opinion, the argument contains no points making doubtful the conclusions heretofore reached.

Claim is made that the authority of the subagent to waive the, insured's right to the ten-day notice of the insurer's cancellation, provided the policy remains undelivered by the subagent, and other insurance replaces it, is not a necessary incident of the general authority the insured has given to obtain insurance for him. The business might be done without that incident, it is true. It is not a necessary incident, and for the sake of argument may even be assumed an undesirable one. The inquiry remains, What authority was in fact given? Since, in summary, the plaintiff made Kimball his alter ego in obtaining the insurance, and the subagent might do anything fairly serving his assignment to obtain part of it, the only reasonable conclusion is that the right to waive wars given as an incident within the scope of authority. Not a necessary incident, it was yet one the evidence made it necessary to And. How much authority was given, and not how much had to be, is the issue.

The relations between the insured and the agent or subagent are such as the evidence discloses. The law does not undertake to prescribe or regulate them. It only applies the general and simple rule of the principal's responsibility for his agent's authorized acts. The insured either gives or withholds authority. If he gives it, he is bound by conduct pursuant to it. The extent of authority is to be ascertained as matter of fact. As matter of law, the agent's conduct is chargeable to the principal if it comes within the extent. The facts, whether undisputed or contested, being ascertained and known, the principal's responsibility follows as a legal result if the facts disclose authority. Federal Insurance Co. v. Sydeman, 82 N. H. 482, 485, 486, 136 A. 136. The opinion states and employs no other rule. It declares no doctrine of policy and gives no special legal consequences to the agent's engagement. No unusual or particular legal incidents or features are held to control the arrangements entered into between an insured and an insurance agent, and no rules are adopted with reference thereto subordinate or auxiliary to the general rule of responsibility for authorized conduct. In each case the terms of the engagement are to be considered, to show if the conduct in question is within them. In ascertaining the terms, the established principle that they include not only those expressed, but as well those necessarily or reasonably to be implied, is employed.

It is said...