Susquehanna Mutual Fire Insurance Co. v. Clinger

• Decision Date: 23 March 1899
• Docket Number: 4-1899
• Citation: 10 Pa.Super. 92
• Parties: The Susquehanna Mutual Fire Insurance Company v. H. J. Clinger, Appellant
• Court: Pennsylvania Superior Court

10 Pa.Super. 92

The Susquehanna Mutual Fire Insurance Company v. H. J. Clinger, Appellant

No. 4-1899

Superior Court of Pennsylvania

March 23, 1899

Argued February 15, 1899 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C. P. Lycoming Co.-1885, No. 248, on verdict for plaintiff.

Assumpsit. Before Savidge, P. J., of the 8th judicial district, specially presiding.

It appears from the record that summons assumpsit was issued April 7, 1885, to recover certain insurance premiums for which the defendant, it was alleged, was liable. On April 27, 1885, appearance was entered for defendant " reserving all exceptions, as per paper filed." On May 12, 1885, defendant filed an affidavit of defense to the merits. On January 11, 1896, plaintiff filed a rule to plead. Same day, other counsel appeared for the defendant, " reserving all exceptions as per paper filed." On the same day defendant's attorney offered a praecipe for non pros. in the above case. Prothonotary refused to enter same, filing as a reason that a statement has been entered already, to which affidavit of defense has been filed. On January 11, 1896, rule was granted to show cause why non pros. should not be entered in above case, upon the ground that no declaration or statement has been filed therein, and why the prothonotary should not be ordered to enter such non pros. upon the praecipe of the defendant's attorneys, as provided in the ninety-sixth rule of court, returnable February 13, 1896. On March 28, 1896, an amended statement presented and ordered filed, and rule for judgment of non pros. discharged, and on March 31, 1896, defendant plead non assumpsit, payment and set-off. There was evidence tending to show that early in 1881, the plaintiff company appointed defendant its agent for the soliciting and placing of fire insurance risks in the vicinity of Williamsport; that defendant accepted the agency, and placed certain risks and delivered policies covering the same, and collected the premiums, amounting to some $ 828, and that he had failed to pay over the amount of the premiums to the company, leaving a balance due the company, less his commission of twenty-five per cent, of $ 621. It was admitted that these policies were placed by defendant; that the premiums were paid by the parties, and that none of them had ever been paid over to the plaintiff. There was evidence introduced on the part of defendant tending to show that he was not employed as agent of the defendant company, but that he was acting for the Union Insuring Company, Limited, and that the contract of agency was between the plaintiff and the Union Insuring Company, Limited, and that it was this company, acting in the capacity of broker, which placed the policies in question, collected the premiums, and failed to pay over the money.

The copy of claim filed in the case was in the following form: " Susquehanna Mutual Fire Insurance Company v. H. J. Clinger, No., May Term, 1885. Harrisburg, Penna., July 28, 1884, H. J. Clinger to Susquehanna Mutual Fire Insurance Company, Dr." Here follows an itemized bill stating the premiums, policy numbers and deposits footing up $ 857.17, with the credits for returned premiums and commissions of $ 207, making the net total $ 621. To this was attached an affidavit of the secretary of the Susquehanna Mutual Fire Insurance Company that the foregoing account as stated against H. J. Clinger is just and true, and that there is now due and owing thereon the sum of $ 621 to the Susquehanna Mutual Fire Insurance Company, above named, and interest on same, and that the said insurance company never received the same, nor any part thereof, nor any person for them, by its order, consent or direction, or to its knowledge.

The amended statement was in more formal shape, claiming the same amount of money as due under a verbal contract between the plaintiff company and defendant, under which defendant was constituted the local agent for plaintiff company and set up that at divers times daily reports of the policies of said company issued by defendant were furnished by him, signed by him as agent.

Plaintiff submitted, inter alia, the following points:

The plaintiff's first and second points are affirmed.

1. If you find that H. J. Clinger was the agent of the Susquehanna Mutual Fire Insurance Company, and the said company dealt with him as such, he had no right to pass his agency over to the Union Insuring Company without the knowledge and consent of said company. (And by the said company is meant the Susquehanna Mutual Fire Insurance Company.) And if he did so do, the presumption is that the Union Insuring Company was acting for H. J. Clinger, and not for said insurance company, and Mr. Clinger is not relieved of his personal responsibility to the company.

[2. If you believe that H. J. Clinger was appointed agent of the company for the purpose of obtaining risks, receiving the premiums, and reporting all policies issued by him, and that upon receipt of said reports the premiums were to be charged to Mr. Clinger, and that he should make remittance for such business at stated intervals, it can make no difference in this case whether the said Clinger shall be regarded as a broker or as an agent.]

Defendant submitted, inter alia, the following point:

[10. If the jury believe from the evidence that all of the premiums sought to be recovered in this action were collected by and paid to the Union Insuring Company, Limited, a partnership association, limited, formed under the act of June 2, 1874, and its supplements, and that no part of the same was ever received by the defendant, then their verdict should be for the defendant. Answer: Affirmed, provided you find the said company was acting for the plaintiff and not for the defendant.]

The court charged the jury in part as follows:

[The policies were what is known in insurance parlance as office policies. That is to say, they were signed and executed at the office of the company, furnished to Mr. Clinger in blank, and did not need to be signed by him as the agent of the company. It is admitted that these policies, aggregating, if I am correct in my count, some forty-two, were placed by Mr. Clinger.] . . . .

[Now it seems to me, gentlemen, that the first question of fact for you to determine in this case will be just that question: Was this arrangement, this contract, this relationship of principal and agent, between the Susquehanna Mutual Fire Insurance Company and Mr. Clinger, this defendant, or was it between the Susquehanna Mutual Fire Insurance Company and the Union Insuring Company, Limited? If it was between the plaintiff and this defendant, Clinger, then, in my judgment, the plaintiff is entitled to recover in this case.] . . . .

[But I say to you right here, in a few words, that it makes no difference, in my judgment, whether the contract was one of agency or brokerage. It is not a question arising between the parties insured and the Susquehanna Mutual Fire Insurance Company, wherein it might become very material to know whether Mr. Clinger or the Union Insuring Company, Limited, whichever was the party doing this business, was a broker or an agent; but it is a question arising between the principal and the agent or broker, whichever might have been created, and for the purpose of this case, it makes no difference whether Mr. Clinger was a broker or an agent; or whether the Union Insuring Company, Limited, if you find that to be the party with whom the relationship or contract existed, was a broker or an agent. The question is, with which party did this relationship exist, or was this contract made?]

Verdict and judgment for plaintiff for $ 957.41. Defendant appealed.

Errors assigned among others were in not entering a non pros. on the ground that no declaration or statement had been filed within two years from the first day of the term to which the action was brought. In permitting plaintiff to file the amended statement of March 28, 1896. To portions of the judge's charge, reciting same. Answer to plaintiff's second point, reciting point and answer. Answer to defendant's tenth point, reciting point and answer. In refusing binding instructions for defendant.

Affirmed.

T. M. B. Hicks, with him W. H. Spencer, for appellant. -- In a statement under the Act of March 21, 1806, 4 Sm. L. 326, " the terms must doubtless be set forth in an intelligible manner, for it would not else appear that there is an available cause of action:" Snevely v. Jones, 9 Watts, 433; " but, although the act was evidently designed to do away with form, yet substance cannot be altogether disregarded when the party pursues this remedy:" Camp v. Bank, 10 Watts, 130; " its object is to inform the defendant of the nature of the plaintiff's demand:" Purviance v. Dryden, 3 S. & R. 402; " it was intended that the statement, substituted for this string of counts, should inform the defendant whether the demand was a promise express or implied, a book account, a note or specialty, or how many of them, the date and amount of each:" Graff v. Graybill, 1 Watts, 428.

One could but guess whether this " copy of claim" was intended to be a statement to recover upon a book account. If he should guess that it was so intended, then he would see at once that it was not such a book account as could be the basis for an action. The only purposes for which books of original entry are available are to sustain actions for work and labor done, and for goods and merchandise sold and delivered. Books of original entry are not admissible to prove the services of a notary public: Harbison v Hawkins, 81 *Pa. 142; nor the services of a lawyer: Hale v. Ard, 48 Pa. 22; nor to establish...