McDonald v. New World Life Ins. Co.

• Decision Date: 02 December 1913
• Citation: McDonald v. New World Life Ins. Co., 76 Wash. 488, 136 P. 702 (Wash. 1913)
• Court: Washington Supreme Court
• Parties: McDONALD v. NEW WORLD LIFE INS. CO.

136 P. 702

76 Wash. 488

McDONALD v. NEW WORLD LIFE INS. CO.

Supreme Court of Washington

December 2, 1913

Department 2.Appeal from Superior Court, King County; Everett Smith Judge.

Action by D. P. McDonald against the New World Life Insurance Company.From a judgment for plaintiff, defendant appeals.Reversed, and new trial granted.

T. A E. Lally, John D. Carmody, and Pat. M. Tammany, all of Seattle, for appellant.

James T. Lawler and William H. Burns, both of Seattle, for respondent.

MORRIS J.

Appeal from a judgment based upon a verdict in an action where it is sought to recover commissions claimed to be due from appellant upon a sale of its capital stock.The action was brought against the appellant and the Columbia Finance Company.The finance company, however, was not served.The theory of the respondent is that the finance company was the authorized agent of the insurance company for the sale of the stock, and that as such employed him, and that, acting under such employment, he sold the stock on which the commission is claimed.The appellant contends that respondent was not its agent in the sale of the stock, but represented the finance company and it alone, and that the latter company is responsible to him for his commission.Having reached the conclusion that the judgment must be reversed, we will make only such reference to the facts as is necessary to a proper understanding of our views on the point submitted.

Error is claimed in the admission of certain exhibits, consisting of printed matter giving an outline of the intention of the insurance company, which was a new organization just embarking in the writing of life insurance, as to its plan of operation, the value of its stock as an investment, a personal reference to each of its officials, and copies of letters purporting to have been written by various well-known gentlemen, commending the insurance company as an investment feature.These exhibits were introduced as binding upon appellant, without any preliminary proof of their authorization or issuance by appellant.The respondent testified that some of these exhibits were handed him by a Mr. Gorman, who is not claimed to have any connection with appellant.Others were sent him by mail from Spokane.It is admitted that Spokane is the home office of appellant.It is also the home office of the finance company and of a Mr. Harding, who was the person through whom respondent first became interested in the sale of the stock and whose connection with the insurance company was one of the issues in the case; respondent claiming he was acting for the appellant, while appellant claims Harding was acting solely for the finance company.We therefore think that, if deemed material, in order to make these exhibits admissible as against appellant there should have been some proof from which the jury could find that they were authorized or issued by appellant, or that in some way appellant had become responsible for their existence.Atchison, T. & S. F. R Co. v. Cruzon,31 Kan. 718, 3 P. 520;Berry v Mathewes,7 Ga. 457...