Waldman v. North British Mercantile Ins. Co.

Decision Date19 December 1890
Citation8 So. 666,91 Ala. 170
PartiesWALDMAN v. NORTH BRITISH MERCANTILE INS. CO.
CourtAlabama Supreme Court

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action by Henry Waldman against the North British Mercantile Insurance Company on a policy of fire insurance. From a verdict and judgment in defendant's favor plaintiff appeals.

Watts & Son, for appellant.

Tompkins & Troy, for appellee.

MCCLELLAN J.

This action is upon a policy of fire insurance. The following is one of its stipulations: "*** Or if the assured shall have, or shall hereafter make, any other contract of insurance, whether valid or not, on the property hereby insured, or any part thereof, without the consent of the company written hereon, *** then, and in every such case this policy shall become void." The assured subsequently did make such other contract of insurance. No consent thereto was ever written on the policy. In point of fact, no notice thereof was brought home to the insurer or E. B. Joseph, its local agent, until after the loss for which recovery is now sought. None of these facts are controverted. One Gay was a clerk of the Capital City Insurance Company. Said Joseph was president of that company. He conducted the business of the defendant company in the office of the company of which he was president. Gay acted, in some sort, in the capacity of clerk to him in respect to the business of the agency. It is claimed by the plaintiff that Gay had notice of the additional insurance, and waived the forfeiture operated thereby; but the evidence on the point is in direct conflict. Conceding, however, that he did, the question is whether notice to him was notice to the company, and whether a waiver by him would bind the company. This depends, of course, upon the facts as to his relations with the company, and with Joseph, its agent. Confessedly, he was not the agent of the company. It had not employed him. It had not authorized him to act for it. It did not know him, or that he had ever assumed, or been employed by Joseph, to act for it. He was, however, in some manner, as we have seen, the clerk of Joseph in this business. In that capacity, he was to do mere clerical work. "He was to do what I told him to do," Joseph swears. He had authority from Joseph to fill out insurance policies and he sometimes issued policies, signing Joseph's name thereto with a stamp. He also had authority from Joseph, it seems, to raise the rate of insurance in policies, and to indorse the fact upon them. He did so, it appears, in this instance. But the defendant company never knew about any of these things. Joseph swears, further, that he had never authorized Gay to waive any of the conditions embodied in the policies of the defendant corporation. These are all the facts found in the record as to the capacity in which Gay acted, and his authority in the premises. There was no controversy as to any of them. Upon this showing, our opinion is that Gay was in no sense the agent of the defendant, nor authorized to bind it in any degree, nor was it affected by the alleged notice to him of the additional insurance. The principle of law involved we find nowhere better stated than in Mechem on Agency, at section 197, as follows: "If an agent employs a subagent for his principal, and by his authority, expressed or implied, then the subagent is the agent of the principal. *** But if the agent, having undertaken to transact the business of his principal, employs a subagent on his own account to assist him in what he has undertaken to do, he does so at his own risk, and there is no privity between such subagent and the principal. The subagent, therefore, is the agent of the agent only, and is responsible to him for his conduct, while the agent is responsible to the principal for the manner in which the business has been done, whether by himself, or by his servant or his agent;" and at section 728, where it is said; "The question whether notice to a subagent is notice to the principal depends upon considerations already stated, [referring to section 197, quoted above]. If the subagent be one whom the agent was expressly or impliedly authorized to appoint, he is to be deemed to be the agent of the principal; and notice to such subagent would be notice to the principal, as in the case of other agents. But if the subagent be the agent of the agent merely, then there is no privity between him and the principal, and his knowledge cannot be imputed to the...

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