McClure v. Mississippi Valley Ins. Co.

• Decision Date: 05 June 1877
• Parties: MOSES MCCLURE, Respondent, v. MISSISSIPPI VALLEY INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 148

MOSES MCCLURE, Respondent,

v.MISSISSIPPI VALLEY INSURANCE COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 5, 1877.

1. Where W., the general agent of an insurance company at J., entered into a partnership with K., the fact that a circular was forwarded to the home office of the company, stating that K. was in charge at J., and would “take pleasure in serving both companies and patrons under the firm name of” W. & K., imposed no obligation upon the company of denying the authority of K. to act as its agent.

2. Where a policy of insurance is countersigned “W., agent, per K.,” this form of signature is sufficient notice to put the insured upon enquiry as to the authority of K.

3. A general agent, with power to issue policies of insurance, the signing and delivery of which involve passing upon the character of risks, and consequently call for the exercise of discretion and judgment, cannot delegate his powers as such agent to another.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.HENDERSON & SHIELDS, for appellant: An agent whose duty requires the exercise of skill or discretion cannot delegate his authority.-- Brown v. Railway Passenger Assur. Co., 45 Mo. 221; Grady v. American Central Ins. Co., 60 Mo. 116; Commercial Bank v. Norton, 1 Hill, 501; Williams v. Woods, 16 Md. 220; Norton v. Ball, 43 Mo. 113. The signature “W., agent, per K.,” was sufficient to put the insured upon enquiry.-- Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117.

NOBLE & ORRICK, for respondent: W. had power to authorize K. to countersign policies of insurance for him, and thus bind the company. Grady v. American Central Ins. Co., 60 Mo. 116; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117. It was not necessary that W. should sign in person; if he directed K. to do it, or, with a full knowledge of the act, adopted it as his own, it is sufficient. 1 Hill, 501; 8 N. Y. 398; 10 N. Y. 213; 13 B. Mon. 400. The company is bound by the acts of K., as it gave him the apparent authority to act.-- Lightbody v. Insurance Co., 23 Wend. 18.; Rossiter v. Trafalgar Life Assn., 27 Beav. 377; 4 Cow. 645; 58 Ill. 463; 12 Iowa, 126; 57 Mo. 107.

HAYDEN, J., delivered the opinion of the court.

This is an action on a policy of insurance against fire. The petition alleges that the defendant, in March, 1874, issued a policy to the plaintiff, by which it insured him in the sum of $1,500 on his stock of merchandise, then in a frame warehouse in Baxter County, Arkansas. The issue at the trial was whether the policy was made and delivered by the defendant. There was evidence tending to show that one Wickersham was the agent of the defendant at Jacksonport, Arkansas, with power to make insurance by policies to be countersigned by him, and that a statement had been filed by the defendant with the insurance commissioner of Arkansas, under a law of that State, to the effect that Wickersham was the agent of the defendant at Jacksonport, with power “to solicit risks, issue policies, receive applications, or receive premiums” for defendant; that in February, 1874, Wickersham had an office at Jacksonport, where he kept the books and papers pertaining to the agency, among others, blank policies furnished by the defendant, with lithographic signatures of the president and secretary of the company, and with blanks for his own signature, to be attached according to a clause in the policy which provided that the policy should “not be valid until countersigned by the duly authorized agent of this company at Jacksonport, Arkansas.” It appeared that in February, 1874, Wickersham formed a partnership with one Kerr, by which, according to written articles, which were admitted in evidence, they agreed to carry on a fire and marine insurance agency business, which was to be under the control of Kerr during the absence of Wickersham; that Wickersham turned over to Kerr certain blanks and papers, among others, blank policies of the defendant, which remained in the office of Wickersham & Kerr, in charge of Kerr; that Wickersham had formed another partnership in a similar business, which was to be carried on at Helena; and that circulars were issued, one of which was mailed to the defendant, advertising these changes, and that the agency at Jacksonport was in charge of Kerr.

In March, 1874, and while Wickersham was absent from Jacksonport, the plaintiff, who had previously had conversations with Kerr about taking a policy, applied at the office of Wickersham & Kerr for insurance on his goods, when Kerr said he would select two of the best companies he represented, and issue to plaintiff a policy of $1,500 in each. Accordingly, Kerr issued to the plaintiff the policy sued on, which bore the counter-signature “J. W. Wickersham, agent, per Will. W. Kerr,” and received from the plaintiff the premium. Kerr testified that the defendant company was included in his partnership with Wickersham, it being a company for which Wickersham had the agency; that the authority he (Kerr) had to take the risk was derived from the articles of partnership; that Wickersham was not present when the policy was issued; that he (Kerr) made no report as to it to the defendant, but reported its issue to Wickersham, whose agent he was. Upon this, the plaintiff contended Kerr had authority from Wickersham, and that the latter adopted Kerr's act. It was admitted that there was a loss of the goods by fire to an amount exceeding $1,500. At the request of the plaintiff the court gave the following instruction:

“If the court, sitting as a jury, finds from the evidence that, at the time the policy sued on was issued and delivered to plaintiff, J. W. Wickersham was the agent of defendant at Jacksonport, Arkansas, and that as such agent he was duly authorized to solicit risks, issue policies, and collect premiums on the same, and that, while acting as such agent, said Wickersham authorized W. W. Kerr to countersign said policy sued on, in the name of Wickersham, agent, then said policy is the policy of defendant.”

The following declarations of law, asked by the defendant, were refused by the court:

“1. That although the court, sitting as a jury, may find that Wickersham was the agent of defendant at Jacksonport, Arkansas, with power to countersign and issue policies for defendant; and although the court may further find that Wickersham & Kerr formed a copartnership for the purpose of carrying on the business of fire insurance at Jacksonport, said Wickersham had no right to delegate his authority to issue policies, as agent of defendant, to said Kerr, or to authorize him to countersign and issue policies that would be binding on defendant, unless defendant had expressly authorized him to do so, or, subsequent to such delegation, ratified the same.

2. That although the court, sitting as a jury, may find from the evidence that Wickersham was agent of defendant, with power to countersign and issue policies for defendant, and that one Kerr countersigned and delivered the policy sued on to plaintiff, in the name of Wickersham, and that Wickersham had authorized Kerr to sign Wickersham's name to defendant's policies, and to issue the same in his (Wickersham's) absence, such act of Kerr's will not bind defendant, unless the court, sitting as a jury, further finds that such delegation of authority to Kerr was made by Wickersham with defendant's knowledge and consent, or that Wickersham was expressly authorized to appoint sub-agents for defendant, or that defendant had notice of the issue of said policy sued on by Kerr, and made no objections thereto on account of Kerr's assuming to act as defendant's agent.

3. The issuing of a policy of insurance by an agent for an insurance company, when the nature and position of the property to be insured, and the character of risk, is to be determined by the agent, is a delegation of judgment and discretion to the agent; and an agent appointed by an insurance company for that purpose, and with power to countersign and issue policies, cannot delegate his authority so to do to another, or appoint a sub-agent to act for him, without the knowledge or consent of the company, so as to make the act of such agent binding on the company.

4. There is no evidence in this case showing that Wickersham ever delegated his authority to Kerr, as defendant's agent, or authorized him to issue policies for defendant in his (Wickersham's) name, and plaintiff cannot recover.

5. The plaintiff was bound by the conditions of the policy sued on, and one of the conditions of the policy sued on, and offered in evidence, was that ‘this policy should not be valid unless countersigned by defendant's agent at Jacksonport, Arkansas;’ and the signing of Wickersham's name by Kerr was sufficient to put plaintiff on his enquiry as to what authority Kerr had to so act for Wickersham, and it was the duty of plaintiff to make enquiry thereof from defendant; and unless this court, sitting as a jury, find that he did so enquire, and was led by defendant, either by its silence after notice, or by its acts and statements to him, to believe that W. W. Kerr had authority to issue said policy to plaintiff, then the verdict should be for the defendant.”

The court, sitting as a jury, found for the plaintiff; and the case is here by appeal.

There is no rule of the law of agency better settled, and none which is of more importance not to have unsettled, than that where a principal commits to an agent powers involving the exercise of peculiar skill, discretion, or judgment, in the trust that the agent will exercise the personal qualities for which, it is to be presumed, he was selected, the agent cannot delegate such powers, or any portion of them, to a third person, so as to affect the rights of his principal, unless the principal gives the agent an express power of substitution. The exceptions to the axiom that an agent cannot delegate his authority do not affect the above rule. Thus, where it is the custom of...