South Bend Toy Mfg. Co. v. Dakota Fire & Marine Ins. Co.
| Decision Date | 13 July 1892 |
| Parties | South Bend Toy Manuf'g Co. v. Dakota Fire & Marine Ins. Co. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. A person authorized to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect by issuing or renewing policies, must be regarded as a general agent of the company. 48 N.W. 310, affirmed.
2. When the facts are undisputed, the court is authorized to determine whether they create an agency, and, if so, with what powers and limitations. This power of the court should be exercised only in a very clear case, and in no case when the evidence is to any extent conflicting, or when the evidence is such that different minds might honestly draw different conclusions therefrom.
On rehearing.
This case was argued and submitted at the April term, 1891, of this court, and the judgment of the court below was affirmed. The opinion of the court is reported in 48 N.W. 310. A petition for a rehearing was filed, and, by reason of the important questions involved, was granted. The case was reargued at the October term, when the counsel for appellant not only argued the case orally, but submitted an elaborate and exhaustive brief and printed argument. The first point made by the learned counsel is that the court erred in its decision in holding that Ben Phelon, who issued the policy in controversy in this action, was the general agent of the defendant, and contends he was only a special agent. We assumed, in our opinion, without discussing the question that Phelon was a general agent of the defendant, and a careful examination of the question leads us to the conclusion that we were correct in designating him as such. The instrument appointing Mr. Phelon is given in full in the record, and the part material to the question here presented is as follows: "The Dakota Fire and Marine Insurance Company of Mitchell having appointed Ben Phelon, of New Orleans, in the county of ----- and state of La., the agent of said company, to solicit and contract for insurance by said company against loss or damage by fire, lightning, and tornado, and the risks of inland navigation and transportation, in the locality above described, and the vicinity thereof, and to issue the policies therefor, subject to such rules, directions, and regulations as said company has made, or may hereafter from time to time impose; and subject, further, to the right of said company to cancel any policies or contracts of insurance that may be made by said agent; and also further subject to the right of said company by notice in writing addressed to said agent, at the place above indicated, or personally by an agent of this company duly authorized to revoke and discontinue said agency: It is agreed that said agent will mail direct to the said company at Mitchell, Dakota, the application or daily report, upon which any policy may be written, not later than the day on which such policy is written, or the date of the making of the contract of insurance; and shall, upon request of the company, furnish to it full information respecting any risk upon which he may have issued a policy of insurance ***"
It will be observed that by this instrument Phelon was authorized to solicit and contract for insurance at the city of New Orleans, "and the vicinity thereof," and "to issue policies therefor." He was required to furnish the company "full information respecting any risk upon which he might issue any policy of insurance." It will thus be seen that he was not a mere soliciting agent, but that he had full authority to contract for insurance, and issue policies therefor, without communicating with the home office otherwise than by reporting the policies he had issued. This power would, of course, include the power of fixing the amount of premium to be paid, and all the other incidents connected with the contract. It will be further noticed that his authority not only included the city of New Orleans, but "the vicinity thereof,"--a rather comprehensive term. That he possessed blank policies, signed by the proper officers of the company, is not only apparent from the terms of the contract, but from the evidence in the case, as it seems he issued the policy in controversy without submitting the risk to the home office. In a well-considered case, decided by the commissioners of appeals of the state of New York, DWIGHT, commissioner, says: "It is clear that a person authorized to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect by issuing and renewing policies, must be regarded as a general agent of the company." Pitney v. Insurance Co., 65 N.Y. 6. See, also, Post v. Insurance Co., 43 Barb. 359; Carroll v. Insurance Co., 40 Barb. 292; Lightbody v. Insurance Co., 23 Wend. 18; McEwen v. Insurance Co., 5 Hill, 105; Gloucester Manuf'g Co. v. Howard Ins. Co., 5 Gray, 498; Krumm v. Insurance Co., 40 Ohio St. 225. The part of the opinion in Pitney v. Insurance Co. above quoted is made part of the text in May, Ins. § 126. See, also, § 129. Under the head of "Universal, General, and Special Agents," Mr. Mechem, in his work on Agency, says: Mechem, Ag. § 6. Ben Phelon comes, we think, precisely within the definition of a general agent as given above. The authorities, no doubt, are to some extent conflicting, but it seems to us the rule laid down in the decisions in New York and by Mechem is as precise and definite as any that can be given.
The second and main contention of the counsel is that the question of agency is always a question of fact for the jury. In this contention we cannot agree with counsel. We know of no rule that makes the question of agency an exception to the general rule that, when there is not sufficient evidence, in the opinion of the court, to warrant a jury in finding a verdict,--and if found it would be set aside by the court,--it is the duty of the court to direct a verdict. And the same rule applies to the admission of evidence of the acts of one to bind the principal, who has not by the evidence been shown to be an agent. Mr. Mechem in his work on Agency says: "And so, when the facts are undisputed, the court must determine whether they create an agency, and, if so, with what powers and limitations; and this is equally true whether it is sought to establish the agency by previous authorization or by subsequent ratification." Mechem, Ag. § 105; Gulick v. Grover, 33 N. J. Law, 463; London Savings Fund Soc. v. Hagerstown Savings Bank, 36 Pa. St. 498.
This seems to be a reasonable and proper rule. Surely a person ought not to be bound by the acts or declarations of an alleged agent until there is sufficient evidence to warrant a jury in finding that such person is in fact an agent. This power of the court should, undoubtedly, be exercised only in a very clear case, and in no case when the evidence is to any extent conflicting, or when the evidence is such that different minds might honestly draw different conclusions therefrom. The inferences or conclusions, however, must be such as can reasonably be drawn from the evidence itself. Jurors cannot be permitted to base their verdict upon mere speculation or conjecture of facts that might exist, or upon theories invented by themselves or by counsel, entirely unsupported by the evidence. Stone v. Crow, (S. D.) 51 N.W. 335. This is well illustrated by the contention of the learned counsel in this case. Speaking of the map sought to be introduced in evidence, he says: "The jury would have been justified in drawing the inference that, when Jacob D. Henderson had the conversation with Badet, the secretary of plaintiff, in reference to insurance, he then made said map with the knowledge of said Badet, for the purpose of obtaining said insurance, and that in this case the map was so used." Yet Badet and Henderson were both witnesses in the case, and the map is not mentioned or referred to by either of them. Now, if the fact was as...
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