Royal Ins Co. v. Wight

• Decision Date: 25 April 1893
• Citation: 55 F. 455
• Parties: ROYAL INS. CO. v. WIGHT et al.
• Court: U.S. Court of Appeals — Third Circuit

55 F. 455

ROYAL INS. CO. v. WIGHT et al.

United States Court of Appeals, Third Circuit.

April 25, 1893

Morton P. Henry, for plaintiff in error.

Wm Wilkins Carr, for defendants in error.

Before ACHESON, Circuit Judge, and BUTLER and WALES, District Judges.

ACHESON Circuit Judge.

In making absolute the rule for judgment for want of a sufficient affidavit of defense, the court below acted upon the supposed binding authority of Grace v. Insurance Co., 109 U.S. 278, 3 S.Ct. 207. But there the question of agency arose upon these words of the contract:

'The insurance may also be terminated at any time, at the option of the company, on giving notice to that effect, and refunding a ratable proportion of the premium for the unexpired term of the policy. It is a part of this contract that any person other than the assured, who may have procured the insurance to be taken by the company, shall be deemed to be the agent of the assured named in this policy and not of this company under any circumstances whatever or in any transaction relating to this insurance.'

The court held that this clause imported nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in matters immediately connected with the procurement of the policy; that his employment was not thereby extended beyond the procurement of the insurance; and that his agency ceased upon the execution of the policy; and, therefore, that subsequent notice to him of the termination of the insurance by the company was not notice to the insured. But this decision by no means rules the case disclosed by the record now before us.

The policy here in suit provides that, when from any cause the company shall desire to terminate the insurance, 'it shall be lawful for the company or its agents so to do by notice to the insured or his representatives, and to require this policy to be given up for the purpose of being canceled, provided that in any such case the company shall refund to the insured a ratable proportion, for the unexpired time thereof, of the premium received for the insurance. ' Now the affidavit of defense, after setting forth the giving of notice by the defendant company of the termination of the insurance to Charles Tredick & Co., who, as the plaintiffs' brokers, had effected the insurance at Philadelphia, and the particulars of that notice, contains the following averment:

'That the insured

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