Parker v. Rochester German Ins. Co.

• Decision Date: 01 January 1895
• Citation: 39 N.E. 179,162 Mass. 479
• Parties: PARKER et al. v. ROCHESTER GERMAN INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 479

39 N.E. 179

PARKER et al. v. ROCHESTER GERMAN INS. CO.

Supreme Judicial Court of Massachusetts, Essex.

January 1, 1895

COUNSEL

H.F. Hurlburt and E.T. McCarthy, for plaintiffs.

Wm. H Niles and Geo. J. Carr, for defendant.

OPINION

ALLEN J.

By St.1887, c. 214, § 60, which was in force at the time of issuing of the plaintiff's policy, a standard form of policies of insurance against fire was provided, to which insurance companies were required to conform, with certain exceptions, not material here. The plaintiffs' policy was in this standard form, and it contained the following provision: "This policy shall be void *** if the insured now has or shall hereafter make any other insurance on the said property without the assent in writing or in print of the company, or if, without such assent, the said property shall be removed, except that, if such removal shall be necessary for the preservation of the property from fire this policy shall be valid without such assent for five days thereafter." No such necessity for a removal existed but the property was removed to another building without the assent, in writing or in print, of the company. The plaintiffs rely, however, upon an oral agreement made by the defendant's agents to transfer the policy so that it would cover the property after its removal; and the jury, by its verdict, has found that such oral agreement was made. The first question is whether the policy can be saved in this way, and this depends on the extent of the agent's real or apparent authority. The agents held a written power of attorney, which authorized them "to receive proposals for insurance against loss or damage by fire in Lynn and its vicinity, to fix rates of premium upon the same, to receive such premiums, and to countersign policies of insurance, when signed by the president and attested by the secretary of said company, and issue the same upon such proposals therefor, and, by writing indorsed therein, to renew any of such policies, or to vary the risks therein, or to permit the assured in any such policy to convey the property insured therein, and assign said policy to the person to whom such conveyance is made; but all powers of said agents are to be exercised subject to and in accordance with the rules and regulations of said company, and such instructions as it may from time to time give, and, when provision is made therefor in such policy, in the manner provided therein." One of the agents testified that they held policies of the defendant company, signed in blank by its president and secretary, and had authority to fill out the blanks and to countersign the policies, and they took risks upon their own judgment, fixed rates, issued policies before submitting the risks to the company, and had a right to transfer policies from one place to another, without consulting with the company. He also testified that a clerk employed by them had similar authority as to making transfers, but we need not consider whether the agents' authority in this respect could be deputed by them to a clerk, no question of this kind having arisen at the trial.

If, in issuing a policy, the company itself had wished to dispense with the provision as to a removal of the property insured or any other provisions contained in the standard form, the statute provided as follows: "No fire insurance company shall issue fire insurance policies on property in this commonwealth, other than...