Pacific Mut. Life Ins. Co. of California v. Barton

• Decision Date: 06 July 1931
• Docket Number: No. 6131.,6131.
• Citation: 50 F.2d 362
• Parties: PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. BARTON et al.
• Court: U.S. Court of Appeals — Fifth Circuit

50 F.2d 362 (1931)

PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. BARTON et al.

No. 6131.

Circuit Court of Appeals, Fifth Circuit.

June 2, 1931.

Rehearing Denied July 6, 1931.

J. L. Doggett and Charles Cook Howell, both of Jacksonville, Fla. (Doggett, McCollum, Howell & Doggett, of Jacksonville, Fla., and Blake Franklin, of Los Angeles, Cal., on the brief), for appellant.

J. T. G. Crawford and Philip S. May, both of Jacksonville, Fla., for appellees.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

The Pacific Mutual Life Insurance Company, defendant below, appeals from a judgment at law rendered in a case removed from a state court of Florida, by which it was held liable to pay $7,000 on a policy of life insurance and $7,000 more because the death resulted solely through external, violent, and accidental means, and a fee for the attorneys of the plaintiffs. The pleadings were elaborately extended in common-law form, and numerous rulings as to their sufficiency are assigned as errors; but the case was at last by a written stipulation submitted to the court for decision without a jury upon an agreed statement of facts. The correctness of the judgment upon these facts is thus the controlling matter. We will notice but one question arising on the pleadings touching the authority of the agent through whom the insurance was placed, and who collected the premiums. The declaration alleged that the insured, Barton, made a written application for insurance, and delivered it to one Goodman, "who was then and there the duly authorized agent of said defendant," and thereafter "paid to the agent of the defendant the premiums on said life insurance and said accidental total loss benefits insurance for the period of one year next ensuing." There was a demurrer that it did not appear that the alleged agent was authorized to receive the payment. The demurrer was properly overruled, not because it was unnecessary that the agent have authority to act, but because alleging him to be an agent implies that he was authorized, and the allegation can be sustained only by proving an authority, actual or apparent. An act done through an agent may properly be alleged according to its legal effect as the act of the principal without alluding to the agent at all, or it may be done, as in this declaration, by averring the agency; and where the agency is averred it may be done generally, without describing the authority of the agent. Bank of Metropolis v. Guttschlick, 14 Pet. 19, 27, 10 L. Ed. 335; Childress v. Emory, 8 Wheat. 642, 669, 5 L. Ed. 705; 2 C. J., Agency, §§ 610, 611.

By its first amended plea the defendant denied that the agent to whom payment was alleged to have been made was authorized by defendant to receive the same. This plea was stricken on demurrer, seemingly because it did not deny an apparent authority or allege that the insured knew the agent's authority was limited. It was, however, as specific as the plaintiffs' allegation of authority, and appears to be a sufficient separate traverse of a material fact, which is allowed under the Florida pleading statute. Compiled General Laws of 1927, § 4321. The error, however, if any, in striking it was harmless because the general issue that defendant never promised as alleged was also pleaded, and that, we think, sufficiently puts in issue the authority, as well as the acts of the agent which were counted on as perfecting a contract with the defendant. The parties so understood, for the agreed statement of facts undertook to cover, not only what Goodman did in this instance, but also what his express authority and customary practice was in collecting premiums.

The agreed facts are in brief these: The deceased, Barton, at Jacksonville, Fla., on January 11, 1927, upon a printed form bearing a serial number and evidently prepared and furnished by defendant, made written application to defendant, attested by Goodman, who signed as soliciting agent, for insurance on his life in an amount of $8,000, the policies to be on the plan of "ordinary life" and to carry monthly benefits of $120 in case of total disability, but $7,000 thereof was to be issued payable to his personal representatives and $1,000 to his wife. The $7,000 policy alone is in issue here. The application concluded thus: "It is understood and agreed (1) that if the entire amount of the first annual, semiannual or quarter premium as selected by me under the statement numbered 7a on the insurance herein applied for is not paid at the time of making this application, there shall be no liability on the part of said Company under this application unless or until a policy shall be issued and manually delivered to me and the entire amount of such first premium thereon actually paid during my lifetime, and while I am in good health; and (2) that if the entire amount of such first premium is paid to said Company's agent at the time of making this application the insurance, subject to the provisions of the said Company's policy applied for, shall be effective from the date of my medical examination therefor, and such a policy shall be issued and delivered to me or to my legal representative, provided the said Company in its judgment shall be satisfied as to my insurability on the date of such medical examination for the amount and on the plan and form applied for; and (3) that if said Company shall not be so satisfied the entire amount of the premium paid, without interest, shall be returned." A form followed, which was to be used in case the premium was prepaid to the agent; but it was left unfilled and unsigned. It referred to a premium receipt as attached which was to be detached and signed by the agent if such prepayment were made. On another sheet was a written request for $8,000 of "accidental total loss benefits," meaning insurance against accidental death, similarly to be divided, $7,000 to insured's personal representatives and $1,000 to his wife. This application was signed by Goodman only, and contained no stipulation postponing effectiveness until delivery of the policy. No money was paid Goodman at that time for either insurance, but a medical examination was made and forwarded with the application to the home office of defendant at Los Angeles, Cal. On January 19, 1927, the home office, having approved the risk, issued a policy in the form applied for for $7,000 on the life of Barton, payable to his personal representatives, which provided for the monthly total disability payments, and apparently also issued a policy for $1,000 payable to the wife, and mailed them to its general agent at Jacksonville with a letter stating: "Before delivering the policies it will be necessary to get a signed statement from the applicant to the effect that his earnings are $1040.00 per month, this statement to be be sent to the home office." The statement to be signed read: "For your confidential information, and for the sole purpose of determining the amount of monthly disability benefits to which I may be entitled, I hereby declare that my average net earnings are in excess of $_____ per month." The insurance against accidental death was issued as a separate policy, though bearing the same serial number as the other. It recites a separate premium, and is complete in itself. It purports to be signed by the defendant's officers at Los Angeles, but is to become effective when countersigned by a duly authorized agent or manager, and is so countersigned by the agent at Jacksonville under date of January 19, 1927. The policies sent from Los Angeles did not reach Jacksonville until January 24th. On January 22d, however, Barton paid Goodman in money the full premiums for all the insurance. The premium receipt originally attached to the application form appears now detached, but whether it was given to Barton at the time of this payment, and what was said in the transaction, does not appear. When the policies arrived, Goodman sought to have Barton sign the certificate of earnings (of which Barton had never been in any way advised), and to deliver all the policies, but found him out of the city. On January 28th, and before returning to Jacksonville, Barton was killed in an automobile accident. The premiums were tendered back to plaintiffs on February 18, 1927, and refused. Goodman customarily collected the first premium on all insurance which he sold, and was allowed...