Westchester Fire Ins. Co. of New York v. Green

• Decision Date: 21 May 1931
• Docket Number: 5 Div. 82.
• Citation: 134 So. 881,223 Ala. 121
• Parties: WESTCHESTER FIRE INS. CO. OF NEW YORK v. GREEN.
• Court: Alabama Supreme Court

134 So. 881

223 Ala. 121

WESTCHESTER FIRE INS. CO. OF NEW YORK v. GREEN.

5 Div. 82.

Supreme Court of Alabama

May 21, 1931

Appeal from Circuit Court, Lee County; S. L. Brewer, Judge.

Action on a policy of fire insurance by H. C. Green against the Westchester Fire Insurance Company of New York. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Denson & Denson, of Opelika, for appellant.

J. W Kelley, of Phenix City, for appellee.

FOSTER J.

The former appeal in this case is reported in 221 Ala. 344, 128 So. 436. On the next trial defendant filed additional pleas and to those numbered from 2 to 8, inclusive, plaintiff refiled his replication which was treated on the former appeal. Defendant urges a reconsideration by us of the sufficiency of that replication. No new question is presented by reason of the additional pleas, nor the additional grounds of demurrer to the replication. But it is said that on such appeal the court at the outset stated the proposition urged in brief to be that the replication is "defective for that it failed to show the agent's authority to waive the stipulation as to plaintiff's title," whereas they now urge that the replication was then and is now subject to that ground of demurrer which points out the fact that the disclosures set out in the replication were made to a person other than defendant's agent, and that such person is not alleged to have been defendant's agent, but rather a subagent.

We agree with appellant that, on this appeal, this court should and will reconsider the question and be governed by what it now concludes to be the law. Section 10287, Code; Anniston v. Hillman, 220 Ala. 505, 126 So. 169. Upon further consideration of the question then treated, we wish merely to say that we now think it was correctly and fully discussed, and that we need add nothing except to cite as further authority in support of it Western Assurance Co v. Stoddard, 88 Ala. 606, 7 So. 379; Ætna Fire Ins. Co. v. Kennedy, 161 Ala. 600, 50 So. 73, 135 Am. St. Rep. 160.

But, in so far as that opinion did not deal with the aspect of that replication now urged, we feel that it should be duly considered and treated. If the replication had stated merely that the notice was given to the alleged subagent, and did not allege notice to C. L. Mullin & Co., the agents, there would be more plausibility to the claim that it was insufficient in this respect. While it does state that plaintiff's wife "fully advised S. J. Gilmore, then acting for C. L. Mullen and Company as such agents," and does not allege that Gilmore was duly authorized by Mullin & Co. as their subagents, and facts which show the right of the agents to appoint a subagent with authority in this respect, or that he was acting for such agents by any authority from defendant, it also states that "with full knowledge of the true condition of plaintiff's possession, ownership and title the said C. L. Mullin and Company issued to plaintiff the said policy of insurance sued upon, accepted the premium thereupon and delivered the same to plaintiff." It was doubtless by virtue of such allegations, as well as the contentions in brief referred to in the opinion which led the court to discuss the sufficiency of the allegation of the authority of C. L. Mullin & Co. without reference to the allegations relating to Gilmore. For the allegation of notice to Gilmore acting for the agents, coupled with the further allegation that the agents had full knowledge, etc., is sufficient to bring home to the agents such notice, either directly to them, though not so expressly stated, or through a subagent with due authority, though such authority is not so stated. An allegation of full knowledge by the agents may be proven by either actual or constructive notice. Ala. Fuel & Iron Co. v. Denson, 208 Ala. 337, 94 So. 311.

We now think that such state of allegation in the replication justified the interpretation placed upon it on former appeal.

But now on this appeal there is here presented, not only the sufficiency of the replication, but also the proof in support of it. Does the proof show notice to Mullin & Co. of the true state of the title of plaintiff, as alleged in the replication. It only shows notice to Gilmore, and so we are now confronted with the question of fact-whether Gilmore was duly authorized by the agents of defendant so that notice to him was constructive notice to the agents so as to bind defendant. The power of fire insurance agents to appoint a subagent is thus expressed, after an elaborate discussion, in our case of Ins. Co. of N. A. v. Thornton, 130 Ala. 222, page 233, 30 So. 614, 617, 55 L. R. A. 547, 89 Am. St. Rep. 30: "The maxim, 'Delegatus non potest delegare,' does not apply in such case, though the service inherently is of a personal character, because authority to delegate delegated powers is found by implication from the extent and general nature of the business in the original authorization to the general agent. The power delegated to the agent, in express terms, being such as to require the services of subagents, carries with it the power to appoint subagents whatever the nature of the service in respect of being in itself a personal confidence may be; for a principal may, of course, delegate to an immediate agent, clothed with duties involving the exercise of personal skill and judgment, the power of devolving such duties upon subagents. It was the absence of bases for the application of this doctrine of implied authorization to appoint subagents from the cases of Waldman v. Insurance Co., 91 Ala. 170, 8 So. 666, 24 Am. St. Rep. 883, and Insurance Co. v. De Jarnett, 111 Ala. 248, 19 So. 995, that distinguishes those cases from the present one. There was in those cases no ground, such as is found here, for saying that, although the duties imposed on the agent were of a personal nature, he yet could delegate them because authorized so to do by necessary or fair implication in his own commission (a proposition recognized in the cases cited in Waldman v. Insurance Co.-Johnson v. Cunningham, 1 Ala. 258; Insurance Co. v. Huth, 49 Ala. 538); and while we adhere to what was there said, and repudiate a contrary dictum in the case of Insurance Co. v. Catchings, 104 Ala. 176, 16 So. 46, we hold that they do not apply here."

Notwithstanding such criticism of the Catchings Case, 104 Ala. 176, 16 So. 46, shown in the above expression, it was referred to in a later case as authority for the rule "that the powers usually conferred on agents representing insurance companies are not of such personal nature, evincing personal trust and confidence only, as to invoke the maxim, 'Delegatus, non potest delegare."' Supreme Lodge, K. of P., v. Connelly, 185 Ala. 301, 305, 64 So. 362, 363. Citing the last above authority it was again in a later case said that whether such an agent "was authorized to delegate his authority to another to act for him, and, in turn, for his principal, was due to be submitted to the jury." L. E. M. L. & A. Ins. Ass'n v. Hughes, 202 Ala. 466, 468, 80 So. 850, 352.

Reference has often been made to the fact that foreign fire insurance companies are permitted to do business in this state only through agents. Sections 8353, 8379, Code; Yorkshire Ins. Co. v. Gazis, 219 Ala. 96, 121 So. 84; Green v. Westchester Fire Ins. Co., 221 Ala. 344, 128 So. 436, 438.

In this connection we observe that by the Act of 1927, page 34, it is provided that "any person who solicits insurance on behalf of any insurance company or for the agent of an insurance company, or [etc.], is deemed an insurance agent." This is the first act of the Legislature which so designates one acting for an agent.

From all the foregoing, we are clear that there are circumstances when a general fire insurance agent may delegate to subagents the power to make contracts of fire insurance binding upon the insurance company.

There is evidence in this case that Gilmore solicited the application for the policy on which suit was brought; that the premium was paid to Gilmore at the office of C. L. Mullin & Co., but there was no transaction with C. L. Mullin doing business as C. L. Mullin & Co. in connection with the issuance of the policy; though there was evidence that he was in the office on some occasions when she made payment on the premium, and that Gilmore seemed to have charge. The policy was for one year from February 14, 1926, and signed in the name of C. L. Mullin & Co., agent. There was no denial of its due execution. Gilmore testified that he was employed by C. L. Mullin & Co., and that C. L. Mullin owned and operated the business; that the policy was a renewal of one written the year before; that he took the policy and delivered it to plaintiff's wife; that she made four installment payments of the premium to him, all at her store, and made none at the office of Mullin & Co.; that he and Mullin both solicited insurance, and that he wrote this policy and with a typewriter signed the name of C. L. Mullin & Co. to it, and put the poster on the back of the policy; and had no conversation with Mullin about it; the premium was remitted to the company. After the fire there was correspondence with an adjuster. No claim has been made of want of authority of C. L. Mullin & Co. to execute the contract or that it was not duly executed. But there was no direct evidence in the record showing his authority.

From all the foregoing circumstances we think it was a question for the jury whether Gilmore had authority binding on defendant to solicit and execute contracts of insurance in the name of defendant by C. L. Mullin & Co., and to sign and issue policies of insurance. It was said on former appeal quoting from Yorkshire, etc., Co. v. Gazis, supra (last...