Newman v. Springfield Fire & Marine Ins. Co.

• Decision Date: 01 January 1872
• Citation: 17 Minn. 98
• Parties: GEORGE NEWMAN v. SPRINGFIELD FIRE & MARINE INS. CO.
• Court: Minnesota Supreme Court

Page 98

17 Minn. 98

GEORGE NEWMAN

v. SPRINGFIELD FIRE & MARINE INS. CO.

Supreme Court of Minnesota.

Appeal by the defendant from an order of the district court, Hennepin county, denying a new trial.

Action on a policy of insurance against fire, issued to one Stanchfield, and at his request, made by indorsement on it, payable to plaintiff to the extent of his interest. Plaintiff held a mortgage on the land upon which the building insured stood.

Hauser & Robinson, for appellant.

Atwater & Flandrau, for respondent.

RIPLEY, C. J.

At the trial of this cause the defendant objected to the admission of any evidence under the complaint, for the alleged reason that the same does not state facts sufficient to constitute a cause of action in not averring an assignment of the policy set out in the complaint, and according to its terms, nor a waiver of this condition of the policy; and that the complaint does not allege notice of the amount of the plaintiff's claim, or that he had any claim at all at the time of the loss.

Some other objections are made to the sufficiency of the complaint, but they seem to us to be unimportant, and not to require discussion. As to those above mentioned, as explained in the defendant's brief, they are that as the policy upon which the action is brought is a contract with Samuel Stanchfield, the plaintiff must show an assignment by Stanchfield to himself, and defendant's consent thereto, since the policy provides that it shall not be assignable without defendant's consent. This assertion, however, is the result of a misapprehension on the defendant's part.

The complaint alleges that, after the making of the policy, defendant, by E. R. Pierce, its duly-authorized agent thereto, at Stanchfield's request, made this indorsement on the policy, viz.: "Payable in case of loss to George Newman to the extent of his claim. Minneapolis, February 1, 1870. E. R. Pierce, agent." This was a mutual agreement between the parties, that the policy should be thus payable thereafter, and the policy thereafter, had the same force and effect, as if Samuel Stanchfield had been thereby in the first instance, in terms, insured against such loss on the property in question, payable in case of loss to said Newman, to the extent of whatever claim he then had on said premises. "The legal relation of a party to whom by the terms of the policy the money is to be paid in case of loss, is most like that of the assignee of a chose in action after notice of such assignment to the debtor, and a promise by him to the assignee to pay him; and such assignee or such promisee may maintain an action in his own name for the money when due." Sanford v. Mech. Mut. F. Ins. Co. 12 Cush. 549.

The complaint accordingly alleges, in substance and effect, that the claim of said plaintiff in the premises was $5,000, secured by mortgage thereon; that Stanchfield, in consideration thereof, on said first of February agreed with plaintiff that in case of loss the insurance should be paid him, and notified defendant, who by said indorsement agreed so to do.

Part of this might, of course, have been omitted; the statement that the defendant at Stanchfield's request thus indorsed the policy covering all of it, but a statement of the fact that Newman had a claim on the building at the time of the indorsement and the loss, to an amount exceeding the amount insured. [Sic.]

It was as unnecessary, too, for plaintiff to notify defendant of his claim at the time of the loss, or before action brought, as it would have been for Stanchfield to have notified it that he still owned the property.

The defendant had notice at the time of the indorsement that Newman had a claim. The amount he could recover would depend on the amount of his claim at the time of the fire, but by no means on defendant's knowledge in that regard.

As to the objection that the verdict is not justified by the evidence, and is contrary to law and evidence, our examination of the case satisfies us that it discloses, which is sufficient, evidence reasonably tending to support the verdict, unless the exceptions taken by defendant to the admission of material portions thereof were improperly overruled.

Whether this was so or not will appear upon an examination of the alleged errors in law occurring at the trial, now to be considered. The first is the admission of any evidence under the complaint, which has already been passed upon.

The objection to the admission of evidence being overruled, said Stanchfield testified that "Mr. Stone, of Pierce & Stone, made out the policy, and Mr. Pierce signed it. Pierce & Stone were doing business together as insurance agents." The last statement was objected to "as irrelevant, it appearing on the face of the policy and complaint that E. R. Pierce alone was the agent of the defendant."

The complaint alleges that the policy was countersigned by Pierce, "the then only authorized agent for that purpose," of defendant; and also, that in February, 1869, defendant by said Pierce, its duly-authorized agent thereto, indorsed the policy as above stated; but the complaint also alleges, that notice of loss was given to defendant through "its authorized agents" Pierce & Stone, and that the proofs of loss were furnished defendant by delivering them to "its authorized agents" Pierce & Stone, which proofs were made in accordance with the direction of defendant through "its duly-authorized agents aforesaid." The defendant's objection would seem, therefore, to have been unfounded in fact, and properly overruled.

The witness went on to state that the indorsement was written by Stone and signed by Pierce; that he was absent from home at the time of the fire, November 19th, in St. Louis, and immediately on getting home he met Mr. Stone in the street. He was then asked, "What did Mr. Stone at that time say to you, if anything, about the loss?" which was objected to as irrelevant for the reason already considered, and for the further reason that there was no evidence that Mr. Stone was an agent of the defendant.

As to this, Stanchfield had also testified that Stone was in business with Pierce, and that he acted in the business of this insurance and this company with him, Stone making out the policy and drawing up the indorsement, and Pierce signing them.

Looked at in no other light, this, nevertheless, brings Stone within that provision of section 7 of chapter 22 of the Laws of 1868, that one who in anywise, directly or indirectly, makes, or causes to be made, any contract or contracts of insurance for, or on account of, any foreign insurance company, shall be deemed, to all intents and purposes, an agent of such company.

Aside from the statute the authority of A. to act for B. may be inferred from the habit and course of dealing of A. and B., and the evidence above mentioned was evidence of a course of dealing of the defendant and Pierce & Stone, implying an authority to said firm, and consequently of each partner to act for it.

These policies, it seems, were executed in blank by the officers of the company, and intrusted to its agents to be filled up, and then delivered in pursuance and execution of the bargain made with the applicant, but not to be binding on the defendant till countersigned by its authorized agent.

It is evident that Pierce alone might be authorized to do this particular thing, and yet Pierce & Stone, or either of them, or anybody else, be, at the same time, the defendant's agents in other respects.

In this case we have Pierce countersigning this policy; but this is, of itself, no proof that he was authorized to do so, or that he was the defendant's agent at all; for though the authority of A. to act for B. may be inferred from the habit and course of dealing of A. and B., it cannot be inferred from the acts of A. alone, though he assumes to act for B. Stark. Ev. pt. 4, pp. 55-59.

But when Pierce & Stone are shown to be doing insurance business in company, and Stone is shown to have the policy in his possession, filling it up in accordance with the terms of the bargain, Pierce countersigning it, and Stanchfield getting it from Pierce & Stone, it is seen that the defendant has intrusted this policy to this insurance firm, for the purpose, as must be presumed, of enabling the firm to act for the company in the business for which such policy is necessary; proof, that is to say, tending to show a course of dealing between these parties, which necessarily implies an authority on the part of said Pierce & Stone to act for the defendant in such business.

Moreover, supposing that there was not at that time evidence in the case of Stone's agency, under the statute or otherwise, enough was afterwards given to prove him such, both under the statute and as one whose acts as such, the defendant was aware of and had recognized. In addition to the proof in this regard hereinafter mentioned, Mr. Stone testified that the defendant knew he was in the business with Pierce; that he had seen the officers of the company in Springfield, and "talked with them about our business, and they knew I was with Pierce. I had also written business letters to the company."

That evidence of the acts of the agent was given before evidence of his authority, would not, therefore, be ground for disturbing the verdict, the latter being afterwards introduced during the trial. The objection was therefore properly overruled.

The witness stated, in answer to this question, in substance, that Mr. Stone told him to fill out proofs of loss, and defendant would settle it; that he need give no notice of loss; that one or two days thereafter he saw Stone again, at Pierce & Stone's office, and he gave witness blanks for said proofs, and told him as there was no justice living near he would suggest a certain notary, to whom witness took said blanks, and after the proofs were made out he handed them to Stone at said office.

To which statements of Stone, each, severally, the...