Rounsaville v. North Carolina Home Fire Ins. Co

• Decision Date: 25 April 1905
• Citation: Rounsaville v. North Carolina Home Fire Ins. Co, 138 N.C. 191, 50 S.E. 619 (N.C. 1905)
• Court: North Carolina Supreme Court
• Parties: ROUNSAVILLE et al. v. NORTH CAROLINA HOME FIRE INS. CO. et al.

138 N.C. 191

50 S.E. 619

ROUNSAVILLE et al.

v.NORTH CAROLINA HOME FIRE INS. CO. et al.

Supreme Court of North Carolina.

April 25, 1905.

INSURANCE—AGENTS — CONTRACT TO INSURE— PERSONAL OR REPRESENTATIVE CAPACITY— UNDISCLOSED PRINCIPAL—ELECTION.

1. In an action to recover a fire loss, evidence held to show that plaintiff relied solely on the individual promise of defendant's ex-agent to keep his building insured, and not on defendant insurance company.

2. Where plaintiff employed defendant's ex-agent to keep his building insured, without any knowledge of the insurance company in which the insurance was placed, and after loss, while there was no insurance on the building because of the agent's negligence, plaintiff told the agent that he would look to him personally to indemnify him, and the agent admitted liability, after which plaintiff recovered judgment against him, he thereby elected to treat the agent as solely liable, and could not recover against an insurance company formerly represented by such agent as an undisclosed principal.

Appeal from Superior Court, Guilford County; Shaw, Judge.

Action by W. H. Rounsaville and another against the North Carolina Home Fire Insurance Company and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

This is an action by the plaintiff to recover for, the loss of a storehouse by fire, which he alleges the defendant through its agent O. W. Carr, under the name of O. W. Carr & Co., had agreed to keep insured for him. On September 1, 1900, defendant, by its said agent, issued a policy on the storehouse for $300, which it is admitted contained the usual terms and conditions of a standard fire insurance policy, and provides that it may be continued by a renewal, in consideration of the premium for the renewal term. It appears from the certificate of appointment issued by the company to Carr that he was authorized to receive applications for insurance against loss or damage by fire and collect premiums therefor, to countersign, issue, and renew and consent to the transfer of policies of insurance signed by the president and secretary of the company, conformably to its rules and regulations and to such instructions as may be given from time to time by its proper officers. It was also provided that his commission as agent could be revoked at the discretion of the company.

The only testimony in the case was that of the plaintiff himself, which may be stated substantially as follows: "The policy was issued September 1, 1900, and was a renewal of a policy previously issued. In February, 1901, O. W. Carr spoke to me about the rates being lower on the storehouse. I told him I was glad to hear it, and to keep it renewed and running. He said he would. He called again two weeks after this. We had about the same talk. On January 8, 1902, I went into the office of O. W. Carr & Co. at Greensboro. Carr was absent, but his son and clerk, Ernest Carr, was in the office. I said to him, 'How about my store at Thom-asville?' He said, 'That's all right.' He then told me that the policy had been renewed last September (1901), and that the storehouse was insured for one year from that date. He gave me the amount of the premium, which I paid by check. The storehouse was burned February 26, 1902, and on that day O. W. Carr came into my store, and told me of the fire. He said, 'Were you insured?' I said, 'Yes, sir.' He said, 'I know you ought to be, and should have been, but I am afraid Ernest neglected to attend to it.' He said, 'I stopped at the office, and did not find your policies, and I am afraid Ernest neglected to renew it' I said, 'I will have to hold you responsible for his negligence.' He said, 'Yes, we are responsible.' He went out and was to call again when I got my mail. He came back, and I said, 'Professor, my house was burned.' He said: 'I was afraid it was, and came here purposely to see you. I know you ought to have been insured, and should have been;' and he again repeated that Ernest neglected to attend to it. I said: 'I can't be responsible for Ernest's negligence. I will have to hold O. W. Carr & Co. responsible;' and lie said, 'We are responsible, and I will do what is right in the matter.' I told him that would be all right" (The declarations of O. W. Carr after the fire occurred were not insisted on as evidence against the insurance company.) The witness further testified: "I looked to O. W. Carr for the pay, but as he was the agent I expected him to get it and pay it to me. I looked to him as agent He promised me to renew the policy and keep it running, but did not say with what company, and I did not know with what company it was then running. He was my friend, and I intrusted it to him to put the insurance in a good company. I did not know what companies were good. He was agent for several companies, and I knew it O. W. Carr never denied that he was liable for something. When he said that the failure to renew the policy was due to Ernest's neglect, I looked to O. W. Carr for my loss on account of the fire. I do not know when I ascertained that the insurance had been placed with the defendant company." It appeared that the agency of O. W. Carr ceased February 4, 1901, and that no policy was ever issued in renewal of the policy of September 1, 1900, and no premium was paid by plaintiff for the renewal of the insurance until long after the said policy of insurance had expired, and then paid to Carr when he was not an agent of the company. It further appeared that the plaintiff recovered judgment in this case against O. W. Carr for the amount he claimed to be due on the agreement to renew the policy in September, 1901. At the close of plaintiff's testimony, the court, on motion of counsel of the insurance company, nonsuited the plaintiff as to the said defendant Plaintiff excepted and appealed.

W. P. Bynum, Jr., G. S. Ferguson, Jr., and E. J. Justice, for appellants.

Stedman & Cook and Busbee & Busbee, for appellees.

WALKER, J. (after stating the case). If it is conceded that O. W. Carr had the authority, as agent of the insurance company, to agree to renew the policy, we yet think it is clear that plaintiff made the agreement with him in his personal, and not in his representative, capacity, and relied solely upon Carr's individual promise for his protection. This is evident not only from what occurred between them at the time of the agreement, but from the conversation they had after the fire, in which the plaintiff charged Carr with liability for his loss, and Carr admitted it and agreed to answer for it. It further appears that plaintiff has sued Carr in this action, and taken judgment against him. If the agreement with the plaintiff to renew the policy was made by Carr as...