Mayhew v. Glazier

• Decision Date: 03 May 1920
• Docket Number: 9497.
• Citation: 189 P. 843,68 Colo. 350
• Parties: MAYHEW v. GLAZIER et al.
• Court: Colorado Supreme Court

189 P. 843

68 Colo. 350

MAYHEW v. GLAZIER et al.

No. 9497.

Supreme Court of Colorado

May 3, 1920

Department 3.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by B. E. Glazier against J. H. Mayhew, to which The National Union Fire Insurance Company was made a party defendant at the request of defendant Mayhew. Judgment for plaintiff against defendant Mayhew, and for defendant the National Union Fire Insurance Company against plaintiff for costs, and defendant Mayhew brings error.

Affirmed.

Tolles & Cobbey, of Denver, for plaintiff in error.

Melville & Melville, of Denver, and Walter S Coen, of Ft. Morgan, for B. E. Glazier.

E. M Walton and F. B. Tiffany, both of Denver, and Moonan & Moonan, of Waseca, Minn., for National Union Fire Ins. Co.

ALLEN J.

This is an action for damages for breach of contract, and was brought by B. E. Glazier against J. H. Mayhew. The National Union Fire Insurance Company was made a party defendant at the request of the defendant Mayhew. Upon trial before a jury a verdict was rendered in favor of the plaintiff and against the defendant Mayhew. The court directed a verdict in favor of the insurance company. Judgment was entered in favor of plaintiff and against the defendant Mayhew for $450 and costs, and in favor of the insurance company against the plaintiff for costs. The defendant Mayhew brings the cause here for review.

The record shows that plaintiff filed his complaint on July 27, 1916, and on February 13, 1917, filed his amended complaint. The defendant Mayhew filed a motion to strike the amended complaint upon the ground that the action, as shown by the original complaint, was one upon contract, and 'that the amended complaint * * * seeks to recover damages for certain alleged torts.' This motion was overruled, and error is now assigned to the overruling of the motion. We agree with the trial judge in the following statement made by him upon overruling a motion for a nonsuit:

'The allegations of the complaint as amended show that this is an action based upon a contract and an alleged breach thereof to recover damages. * * * It is true there are certain allegations in the amended complaint from which a person might assume or infer that the action is not based upon contract, but is based on tort. Boiled down, the complaint alleges that the defendant agreed to do a certain thing, and he failed to do that certain thing. * * *'

The motion to strike was properly overruled.

The allegations of the amended complaint are to the following effect: That on June 9, 1916, the defendant Mayhew solicited and obtained an application for hail insurance from plaintiff on 80 acres of beans, and, in obtaining such application, agreed to and did accept plaintiff's promissory note for the premium, and further agreed to cause the policy of insurance to be issued by the National Union Fire Insurance Company and to become effective on the following Monday, June 12, 1916, but, notwithstanding such agreement on his part, defendant did not present or forward said application to the company, and no policy of insurance was ever issued, and that on Sunday, June 18, 1916, a storm of hail partially destroyed the crop of beans on the entire 80 acres, and that, solely because of defendant Mayhew's failure and neglect to forward said application to the insurance company, the crop of beans had not been insured, and plaintiff had been damaged.

A demurrer was filed to the amended complaint, and overruled. Assignment of error No. II relates to the overruling of the demurrer to the amended complaint. The defendant Mayhew, after the demurrer was overruled, filed an answer, and proceeded to trial on the merits. This was a waiver of the right to object to the ruling on the demurrer, except as to that ground alleging failure to state a cause of action. 31 Cyc. 746; 3 C.J. 668, § 539. In this connection the defendant Mayhew, the plaintiff in error, contends that the amended complaint shows that 'in the transaction' the defendant Mayhew 'was acting for the insurance company as its agent, and whatever contract was made * * * was with said company.' We do not so regard the complaint. The agreement relied on in the complaint is one alleged to have been made with the defendant in his individual capacity, whereby the defendant 'would immediately forward' the plaintiff's application 'to the home office of the company.' It is further alleged 'that solely because of defendant's failure and neglect to forward said application to the company's home office * * * plaintiff's said crop had not been insured.' The complaint shows that the defendant Mayhew was the agent of the plaintiff for the purpose of forwarding the application for insurance to the insurance company. A cause of action is stated, and there was no error in overruling the demurrer.

At the trial the plaintiff was permitted to amend the amended complaint by adding the word 'partially' to an allegation of the complaint, so that the same would read, 'A storm of hail partially destroyed plaintiff's crop.' Error is assigned to the trial court's action in this respect, but if any error there was, the same, it appears from the record, was not prejudicial to the defendant. Furthermore, no objection was made to the amendment, counsel for the defendant merely stating:

'I think it is quite late to make an amendment of that kind. We have been going on the theory all the time there was a total failure of the crop.'

There are 75 assignments of error in addition to those already considered. A great many of these are based upon the theory that the defendant Mayhew, in every part of the transaction with the plaintiff, was acting as the agent of a disclosed principal. This theory is erroneous, and it follows from this circumstance that many of the principles and authorities relied upon by the plaintiff in error are not applicable in the instant case.

There is no occasion for the application of the rule stated in the brief of the plaintiff in error that 'no agent can be bound by a contract which he makes for his principal when he discloses his principal.' The agreement of the defendant Mayhew was that he would promptly forward the plaintiff's application to the insurance company and cause a policy of insurance to be issued. It appears self-evident that as to such agreement Mayhew was acting for himself, and not for the insurance company. Counsel for the plaintiff in error state that 'in this case the evidence of the plaintiff shows that Mayhew told him that he represented the insurance company.' It may be assumed that the plaintiff understood that Mayhew was an agent for an insurance company, but that fact tends to prove rather than to disprove the existence of an agreement, such as that alleged in the complaint, between the plaintiff and the defendant Mayhew in his individual capacity. If the plaintiff believed that Mayhew was an insurance agent, he would naturally believe that such agent could cause a policy to be issued, and, if desiring insurance, might give to such agent an application for insurance. Such was the situation between the plaintiff and the defendant Mayhew. The plaintiff desired hail insurance, effective at the earliest possible moment. He gave the defendant his promissory note, payable to the defendant himself, as payment for the premium, with the understanding that the defendant would cause a policy to be issued without any delay. The transaction occurred on June 9, 1916. According to the testimony of the plaintiff, he said to the defendant Mayhew:

'Now, there is no ifs and ands in the way about this. I can get this insurance at the bank, and I take no chances. I want this in full effect and force immediately if I give you this note.'

And to this Mayhew replied:

'I surely will have it done on Monday without fail; you will have your policy no later than Wednesday.'

In the matter of causing a policy of insurance to be issued, and taking prompt action for this purpose by immediately forwarding plaintiff's application for hail insurance to the insurance company, the plaintiff was relying upon, and dealing with, the defendant Mayhew in the latter's individual capacity. In these matters Mayhew was not the agent of the insurance company.

The plaintiff in error further contends that, if plaintiff's contract was with Mayhew personally, and not as agent for the in surance company, the contract was void as against public policy, and nonenforceable. In support of this contention counsel cite Ramspeck v. Pattilla, 104 Ga. 772, 30 S.E. 962, 42 L.R.A. 197, 69 Am.St.Rep. 197, which lays down the rule that an agent cannot make a valid contract where in the same transaction he acts as agent for both the insurer and the insured. This rule is not applicable in the instant case. The contract sued upon alleged to have been made between the plaintiff and the defendant Mayhew did not conflict with any duty Mayhew owed to the insurance company. Mayhew was the agent of the insurance company for the purpose of soliciting applications for hail insurance, but had no authority to issue policies. The insurance company gave Mayhew certain instructions as to amount of insurance and the rates of premium, and authorized him to take notes for the premium. It permitted him to take a note running to himself and himself remit to the company the cash for the premium. The contract made between the plaintiff and the defendant Mayhew was not against the interests of the insurance company. It did not call for the issuance of a policy different from the policies usually issued. It did not deprive the company ...