Sun Ins. Office of London v. Mitchell, 594

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
Citation65 So. 143,186 Ala. 420
Docket Number594
Decision Date23 April 1914

Appeal from City Court of Gadsden; John H. Disque, Judge.

Assumpsit by W.J.F. Mitchell against the Sun Insurance Office of London. Judgment for plaintiff, and defendant appeals. Affirmed.

The declaration was in code form for action on the policy of fire insurance for loss by fire. Plaintiff's evidence tended to show that he applied to H.B. Myers, the agent of defendant, resident at Gadsden, for insurance on his storehouse and stock of merchandise in Alabama City, a town just outside of Gadsden, and that the rate and amount of insurance, the term and the subject-matter were agreed upon with the specific understanding that the insurance began forthwith, and that the insurance company could cancel the contract if they chose. Plaintiff introduced in evidence a certificate of the secretary of state, showing that H.B Myers, of Gadsden, is duly appointed agent of the Sun Insurance Office, incorporated under the laws of Great Britain, and reciting: "This certificate, issued in compliance with section 4561, Code 1907, authorizes the said agent to transact the business of fire insurance for said company during the year 1912." The introduction of the certificate was objected to by defendant, on the grounds that it does not show that said Myers was the general agent, nor that he had authority to write insurance at the place where the fire occurred, and because it was illegal and immaterial. The property was destroyed by fire about two weeks after the alleged agreement, before any policy was issued, and its value was duly proved.

Myers was a witness for defendant, and admitted the application and negotiation for insurance at the time specified by plaintiff but denied that the contract or terms of insurance were agreed upon; his statement being to the effect that he agreed only to submit the application to the company, and, if they accepted the risk, he would go out and inspect the property that he told plaintiff that none of the companies wrote outside of the home town unless he personally inspected the property; and that as soon as he heard from the company he would go out, and, if it showed up all right, he would be glad to write him, but that there was no reference to when the policy was to be written or when to be paid for. All this was denied by plaintiff.

Defendant introduced in evidence its commission to Myers under which he was acting as its agent, as follows (after setting out the head and branch office, the streets and towns, and the date of founding): "I, J.J. Guile, manager of the United States branch of the Sun Insurance Company of London, being duly empowered thereto, do hereby constitute and appoint H.B. Myers to act as agent of the said office within the limits of Gadsden, to receive applications for its policies of insurance, to make surveys of property for the same, to consist to consignments of policies by indorsements thereon, to countersign and issue policies of insurance signed by the manager of the United States branch of said office, insuring against loss or damage by fire or lightning to buildings and personal property, upon payment of the premiums of such insurance which the said H.B. Myers is hereby authorized to collect and receive in accordance with the rules and regulations of the office, the undersigned expressly reserving power to revoke and annul this certificate at any time. The above authority does not, however, extend to the granting of any power of the said agent to change or order the printed forms or conditions of the policies." Then follows the signing and sealing by the manager and the countersigning by the secretary.

On cross-examination, Myers testified that he wrote the defendant company about plaintiff's application on the same day it was made, and that, when plaintiff inquired about the matter immediately after the fire, he told him that he had the company's consent to write the insurance. This, he stated was not true, although he thought at the time he had an unopened letter from the company, upon which assumption he had made the statement. Several charges were requested by defendant, including the general affirmative charge, which are not necessary to be here set out.

The oral charge of the court was as follows: "As I see the law, gentlemen of the jury, under the laws of Alabama, Mr. Myers was the general agent of this insurance company, and had authority to make contracts of insurance. Then the proposition presents itself to you: Was there a contract made in the first place between Mr. Myers and the plaintiff? This is the controverted question of fact which you must determine from the evidence in this case. A contract of insurance is an agreement, express or implied, and that means either an express contract, an express agreement by words, and in this connection it would not make any difference whether this was in writing or not; a contract of insurance may be made verbally as well as in writing."

Culli & Martin, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.


Both counts of the complaint are in code form, and are not subject to the grounds of demurrer assigned.

The certificate of the secretary of state was properly admitted in evidence. Prima facie it established the general agency of Myers for the defendant company, and authorized him to transact the business of fire insurance for the company in the state of Alabama.

An agent who is authorized to solicit and receive applications for fire insurance, and, at his discretion, to countersign and issue policies of insurance intrusted to him by the company for that purpose, must be regarded quoad hoc as the general agent of the company. 19 Cyc. 780, B, b, and cases cited; I...

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