« AnteriorContinuar »
not appear whether the agent overlooked the fact that the clause itself granted this delay, or intended to grant a further delay of thirty days. Defendant's counsel, in their brief, suggest this doubt, and argue that the agent had no power to grant an extension of any kind.
The policy in question was signed by the president and secretary, and was to become valid when "countersigned by the duly authorized agent of the company at Opelou sas." This agent had full power to make the contract of insurance, to fill in the blanks, and to attach or indorse on the policy other provisions, agreements, or conditions. He was intrusted by the nonresident company with blank forms of policy, and the assured
Clements, Valid Contr. p. 271; 2 May, had no notice of the mandate, other than Ins. p. 1197. that conveyed by the policy itself, and the nature of the agent's employment. The Land, J., delivered the opinion of the last clause of the policy reads as follows, viz; "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."
It follows from the terms of this clause that "provisions, agreements, or conditions" indorsed on, or added to, the policy were subject to waiver written upon or attached to such instrument. The iron-safe clause formed no part of the printed conditions of the policy, but was added thereto by the agent, and hence was subject to the written waiver referred to in the last clause of the policy.
ed. 937, 6 Sup. Ct. Rep. 837; Murphy v. Royal Ins. Co. 52 La. Ann. 775, 27 So. 143. Defendant cannot be held to be bound, either by the first extension granted to the plaintiff in this suit, or by the second extension, which was an attempted waiver of the forfeiture of the policy, which had ensued some ten days before said second extension was granted.
Wood, Ins. ¶ 423; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 689; 2 May, Ins. 511, p. 144; Kenyon v. Knights Templar & M. Mut. Aid Asso. 122 N. Y. 257, 25 N. E. 299.
A local or soliciting agent having no authority as to losses cannot waive the provisions of the iron-safe clause.
On August 25, 1903, plaintiff was insured by defendant against loss by fire in the sum of $1,000 on a small stock of merchandise. The policy was countersigned and issued by the Roos-Edwards Agency, of the town of Opelousas, Louisiana. The usual "ironsafe clause" was attached to the policy, and the following indorsement appears thereon, to wit:
"Permission is hereby given for thirty days to take complete inventory of stock."
No inventory was taken, and on November 5, 1903, the agency made the following indorsement on the policy, to wit:
"The assured, under the above named and numbered policy, having been prevented through illness from completing the inventory of his stock of merchandise, a further period of thirty days additional is hereby given in which to complete said inventory."
On November 8th, five days later, the stock of merchandise was destroyed by fire. The company received notice of the total loss before it received notice by mail of the extension of thirty days.
Payment of the policy having been refused, plaintiff brought suit thereon to recover the full amount, and obtained judgment in the district court. The insurance company appealed to the court of appeal, which reversed the judgment, and the case is now before us on a writ of review.
The court of appeal held that the policy was forfeited by the failure of the assured to make the inventory within thirty days, as stipulated, and that the agents had no power, express or implied, to waive such forfeiture by granting an extension of time for the completion of the inventory. It is to be noted that the written extension same time would have been compelled to refor thirty days is indorsed on the "rider" turn the unearned premium for eleven containing the iron-safe clause. It does months. The agent, being informed of the
The agent had power to issue and renew policies, to make waivers, and grant permits, and the only question for discussion is whether his mandate or employment included the power to waive the forfeiture of the policy resulting from the failure of the insured to complete his inventory within the thirty days stipulated. Doubtless the company or its agent could have insisted on the forfeiture as a legal right, but at the
facts, was called upon to take some action | written upon or attached thereto, against in the premises. He elected to waive the the contention that at the very time of the forfeiture, rather than to cancel the policy making of the contract the parties thereto and return the unearned premiums. This had entered into a verbal contract waiving action induced the assured to rely on the the iron-safe clause and the three-fourths policy as a still subsisting protection value clause, which were attached to the against loss by fire. This waiver was sent policy. The court decided correctly that to the company by mail in the usual manner, but was not received until the day af-assured that the agent had no power to the plain terms of the policy notified the waive, unless by writing on or attached to the policy.
In the case at bar the waiver was in
ter the happening of the loss. The company did not notify the assured or the agent that the waiver was repudiated, and, after proofs were furnished, sent an adjuster to investigate the loss. The adjust-writing attached to the policy, and was made er, however, acted under a nonwaiver agreement, and therefore all the defenses of the company were preserved.
several months after the contract was executed. The waiver was in due form, and the only question is one of power in the agent. There is in the last clause of the policy a necessary implication that agents, officers, or representatives may waive provisions, agreements, or conditions indorsed on, or added to, the policy, and may grant privileges or permissions affecting the in
The agent was furnished with blank policies signed by the president and secretary of the company, and was in the habit of is suing policies without requiring an application, and without referring the subject-matter to the company, in Springfield, Massachusetts. The agent had apparently undoubted power to issue policies, and to attach thereto all the usual and customary agreements and "riders."
The iron-safe clause was therefore a subject-matter of waiver. The printed policy is a general form applicable to all fire inIt is argued, however, that the agent had surance business, and, by its terms, contemno power to waive conditions added to, or plates that the agent making the contract attached to, the policy at the time of the shall have power to add other "provisions, issuance. The last clause of the policy au- agreements, and conditions," and to grant thorized a written waiver of such conditions, permits or privileges affecting the insurprovided it be annexed to the policy. The ance. The policy bristles with forfeitures district judge said: "The term stipulating for causes existing at the date of the confor the completion of the inventory is a tract, or arising subsequently, unless othermere incidental portion of the contract en-wise provided by agreement indorsed on or tered into exclusively for the benefit of added to the policy. It is clear that the the insurer. The extension of time and im- agent making the contract of insurance unplied waiver of the expiration of the origi- der such a policy may modify or change the nal period for the completion of the in- forfeiture clauses by indorsements on, or ventory were acts done by the agent solely additions to, the instrument. With such for the purpose of making the contract of power over the matter of forfeitures, it is insurance available to the insurer as well not difficult to conclude that such an agent as to the insured." may waive a subsequent forfeiture, in the interest of the company which he repre
The district judge cited authorities to show that the agent had general powers, and argued that, as the agent had authority to issue a new policy to the assured on the same conditions as those contained in the original policy, he had implied authority to recognize the validity of the subsisting contract, and to grant additional time for the completion of the inventory.
The court of appeal reversed the judgment of the district court on the authority of the case of Murphy v. Royal Ins. Co. 52 La. Ann. 775, 27 So. 143.
While the case cited is a mine of insurance law, the decision simply recognized and enforced the last clause of the policy, to the effect that no officer or agent of the company should have power to waive, or be deemed to have waived, any condition of the policy, unless such waiver should be
"An agent authorized to issue policies binds the company by all waivers, representations, or other acts within the scope of his business, unless the insured has notice of a limitation of his powers. The question always is not what power the agent did in fact possess, but what power the company held him out to the public as possessing." 1 May, Ins. 4th ed. § 126. "A person authorized to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect, must be regarded as the general agent of the company pending negotiations." Id. p. 235. "And the possession of blank policies and renewal receipts signed by the president and secretary is evidence of such general agency." Ibid. "If a foreign company appoints A.
and B. as local agents, and supplies them | surance policies comes clearly within such with blank policies signed by the company, scope, and is within the apparent authority and which they may fill up and counter- of such local agents. Every policy of insign, they are its general agents. Conti- surance is full of forfeiture clauses, many nental Ins. Co. v. Ruckman," 127 Ill. 364, of which do not affect the soundness of the 11 Am. St. Rep. 121, 20 N. E. 77. Id. note. risk, but at the same time may avoid the "That an insurance agent authorized policy at the option of the insurer. We make contracts of insurance and issue poli- consider that it is within the province of cies may waive forfeitures, and reinstate a local agent in such cases to decide and restore a void policy, is held whether the policy shall continue in force by numerous cases." 2 Wood, Ins. § 415. or be canceled. Justice to the insured reIn the Murphy Case this court cited with quires an immediate decision of such quesapproval the doctrine that an insurance tions, which could not be had if the rules company is bound by the acts of its agent of the company required the reference of "in all matters within the scope of his real such cases to the general management, peror apparent authority," and that third perhaps in a distant state or foreign country. sons, in dealing with such agent, are not No holder of a policy could afford to await bound to go beyond the apparent authority the result of such a reference, nor could conferred on him. Murphy v. Royal Ins. any insurance company afford to transact Co. 52 La. Ann. 782, 27 So. 143. In the business under such conditions. The agent case at bar the agent apparently had orig- is present as the representative of his cominal powers to make contracts of insurance pany in all matters of insurance within without previous applications, and without his territorial district, and his apparent referring the matter to the company. In authority cannot, as to the public, be limissuing the policy in question he exercised ited by private instructions. such original powers, and the company acquiesced therein. The agent had a power of attorney, but the assured knew nothing of its provisions, and it therefore matters not whether it was general or special. The testimony of the agent is positive that the second extension was not subject to the approval or ratification of the company, but was simply notified as in other instances. It is certain that it was written and attached to the policy prior to notice to the company.
Speaking of general agents, Ostrander says: "Having power to make a completed contract, they will also be presumed to have power, by agreement with the assured, to change, alter, or nullify its terms and conditions at any time after the delivery of the contract, and after it has become binding between the parties, unless limitations are imposed, of which assured has notice." Fire Ins. 265, p. 551.
Hence there can be no real distinction between a local agent with power to make contracts of insurance and issue policies, and general agents having the same power. The power to make and complete contracts differentiates such agents from solicitors and other intermediaries between the assured and the company.
Agents, whether local or general, with power to contract, represent the company within the territorial limits to which they are assigned. Their knowledge is imputed to the company, and their acts bind the company within the scope of their employment. The question of the forfeiture of in
"The authority of an agent must be determined by the nature of his business, and is prima facie coextensive with its requirements." May, Ins. 4th ed. § 126, p. 231. "With respect to waiver of the breach of a condition in a policy, the most liberal view is that the agent's authority is coextensive with the business intrusted to his care." Id. p. 232, note, citing Weed v. London & L. F. Ins. Co. 116 N. Y. 106, 22 N. E. 229; German Ins. Co. v. Gray, 43 Kan. 497, 8 L. R. A. 70, 19 Am. St. Rep. 150, 23 Pac. 637.
In the case at bar we are of opinion that the agent had the apparent power to waive the forfeiture resulting from the failure of the insured to complete the inventory within the thirty days specified in the contract.
This was the only issue discussed or decided by the court of appeal. As to keeping a set of books, the obligation did not arise until after completion of the inventory.
As to the charges of fraud and bad faith, they were decided by the district judge to be unsupported by evidence, and were not noticed by the court of appeal. The writ of review is intended to correct errors of law, and this court will not review questions of fact, save in exceptional cases.
It is therefore ordered that the judgment of the Court of Appeal herein rendered be annulled and reversed, and it is further ordered that the judgment of the District Court be affirmed, and that defendant pay costs in both appellate courts.
UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT.
With the exception of a few decisions, which have in almost every instance been subjected to criticism and disapproval, the rule is that the plaintiff in replevin, in possession of the property under a replevin bond, or the defendant in replevin, retaining possession of the property under a forthcoming bond, is liable, at all events, for its return, if the action is decided against him, and the fact that his failure to make return is caused by an act of God or other circumstance beyond his control, and notwithstanding all due care upon his part, is of no ava to relieve him from his bligation. The principle upon which the rule rests is the old common-law theory that one in possession of property seized in replevin, under a replevin or forthcoming bond, is claiming the property as owner, not as a bailee during the pendency of the action, and, if his claim is decided against him, his possession has been wrongful and in violation of the rights of the true owner; and therefore he cannot escape liability under his bond for a failure to return the property, as conditioned therein, by showing that the failure comes from circumstances beyond his control, and notwithstanding such reasonable care by him as is required of bailees or others rightfully in possession.
This principle first appears in 7 Hen. IV., 18. "So, if the defendant claims property, or says that he did not take, etc. If in the meantime the beasts die, or are sold, so that he cannot have a return, he may recover all in damages, if it be found for him." Hale's Notes, Fitzherbert, Nat. Brev. 69.
The question does not arise, so far as discovered, in any other English decisions, but in this country, where the old common-law action of replevin has, by statutory enactment in almost every state, been adapted and enlarged to meet modern needs, the following decisions are found:
return the property replevied if prevented by act of law, which is based not upon a statute, but upon general principles.
3. A plaintiff in replevin who took into his possession, under the writ, lumber to which he was not entitled, cannot plead, in defense of his liability to return the property, that he had caused it to be sold to satisfy his own claim for salvage in recovering and preserving the property, after the vessel on which it was stored, while in his possession, had sunk.
A plaintiff in replevin cannot claim salvage for rescuing the replevied property after it had sunk while in his possession, since it was his legal duty to care for and preserve it.
(December 1, 1904.)
One who replevins cattle, which, without negligence upon his part, die while in his possession, will not, upon that account, be excused from satisfying a judgment for their return or value. De Thomas v. Witherby, 61 Cal. 92, 44 Am. Res. 542. The court says: "A plaintiff, not being the owner of goods, who takes them out of possession of the real owner, holds them in his own wrong, and at his own risk. He has deprived the real owner of the possession, and has also deprived him of the means of disposing of the property pending the litigation; and when, at the end of perhaps a protracted litigation, it is determined that the plaintiff in the replevin suit had no right to the possession of the goods, and judgment is rendered against him for the return of the property or its value, he cannot, on principle or authority, be excused from satisfying said judgment under a plea that the property has been lost in his hands, even by the act of God."
If it appear that the property in controversy has been hopelessly lost or destroyed, a judgment for its value only, without a demand for its return, will be regarded as a technical error merely, not requiring reversal. Brown v. Johnson, 45 Cal. 76.
It appearing that corn which had been replevied had perished or been consumed, a verdict and judgment for the value thereof is proper. Clark v. Adair, 3 Harr. (Del.) 113.
Plaintiffs in replevin, detaining property without a valid claim, act at their peril, and the destruction of the property by fire does not release them from the liability assumed to return it or respond in damages for a failure to do so. Suppiger v. Gruaz, 137 Ill. 216, 27 N. E. 22, Affirming 36 Ill. App. 60.
This last decision was expressly followed in Schott v. Youree, 142 Ill. 233, 31 N. E. 591, Affirming 41 Ill. App. 476, sustaining demurrer to the plea that property was burned after it was replevied, and that it was therefore impossible to make return in accordance with the judgment in the replevin suit.
So, one who wrongfully takes the property of another, although under a writ of replevin, cannot escape liability for the value thereof by showing that it was destroyed by act of God. Scott v. Rogers, 56 Ill. App. 571.
A defendant in replevin, who gave a delivery bond in the statutory form, and retained possession of horses replevied, cannot be dis
E RROR to the Circuit Court of the United | The defendant, by special plea, admitted States for the Western District of Ten-plaintiff's title to 15,000 feet of lumber so renessee to review a judgment awarding dam- plevied, and pleaded the general issue as to ages to defendant in a replevin suit for fail- the remainder. Upon the issues joined, the ure to return the property. Affirmed. jury found for the defendant as to 235,000 feet of lumber, and assessed the value at time of taking at $2,820 and interest thereon from that time, amounting to $241.11. They also awarded the defendant $822.50 as damages for the seizure and detention.
A judgment was thereupon rendered for the return of the lumber so assessed, or its value, with interest, and for the damages for wrongful detention, as assessed by the jury. From this judgment the plaintiff has sued out this writ of error.
Statement by Lurton, Circuit Judge: The plaintiff in error instituted an action of replevin in the court below to recover
250,000 feet of lumber which it claimed had
been unlawfully taken out of its possession
The writ was returned as
by the defendant.
charged pro tanto thereunder, by the fact that one of the horses died while in his possession. His undertaking is absolute to become liable in damages for a failure to return the property in as good condition as it was when the action was commenced. Hinkson v. Morrison, 47 Iowa, 167.
And so, notwithstanding part of the animals die while in plaintiff's possession, a successful defendant in replevin may recover the value of all the property, including that which died. Lillie v. McMillan, 52 Iowa, 463, 3 N. W. 601.
Evidence in a replevin action that sheep detained by defendant in replevin under a redelivery bond died from unavoidable causes is inadmissible, since one wrongfully detaining property cannot be excused from satisfying a judgment therefor under a plea that it has been lost in his hands, even by the act of God. Blaker v. Sands, 29 Kan. 551.
The death of a slave pending an action in replevin does not relieve from the obligation to account for the value thereof. Gentry v. Barnett, 6 T. B. Mon. 113. This decision is based upon a similar holding in Carrel v. Early, 4 Bibb, 270, which was an action in detinue. The court, in discussing that case, says: "It is hard to conceive of a reason supporting this decision [Carrel v. Early] which will not equally apply to the death of a slave pending the action of replevin. Indeed, the reason in the latter case is much stronger. In the first case the defendant is charged because of his wrong only; in the latter, he is not only guilty of the same wrong, but has expressly stipulated in the replevin bond that he will restore, not excepting the death of the slave."
And so, the death of a slave while in the possession of a defendant in replevin, during the pendency of the action, is not a sufficient plea in avoidance of a judgment de retorno habendo. Scott v. Hughes, 9 Mon. 104.
And, likewise, in a statutory action in analogy to the common-law action of replevin, the claimant of attached property may not escape liability upon his bond by reason of the death of the animal in question during the pendency of the action, since by his wrongful interference he protracted the litigation, resulting in the loss of the attached property. Dear v. Brannon, 4 Bush, 471.
The court says, obiter, in Stevens v. Tuite, 104 Mass. 328: "Even in the case of perishable property, or such as has been worn out or de
preciated by use, or been destroyed by fire or
A defendant in replevin, who had given a bond for the forthcoming of the property, is not released from her liability thereunder by the destruction of the property, even though it resulted from circumstances beyond her control and without her fault. George v. Hewlett, 70 Miss. 2, 35 Am. St. Rep. 626, 12 So. 855.
Such as the burning of the property while in his possession. McPherson v. Acme Lumber Co. 70 Miss. 649, 12 So. 857.
When the defendant in replevin gives a forthcoming bond, liability for the goods is thereby fixed upon him and his sureties, which is not affected by the partial destruction of the property; and a tender of the partially destroyed property will not relieve them. Hazlett v. Witherspoon (Miss.; 25 So. 150.
A tender in money of the value, as found by the court, of articles replevied, but which are lost or cannot be returned, is the proper course. Reavis v. Horner, 11 Neb. 479, 9 N. W. 643.
It appearing that the property replevied was destroyed by fire, a failure to render an alternative judgment is not prejudicial error. Richardson Drug Co. v. Teasdall, 59 Neb. 150, 80 N. W. 488. To the same effect is Brown v. Johnson, 45 Cal. 76, supra.
In a few states-Maine, New York, and Tennessee decisions more or less at variance with the rule above shown are found.
Thus, in Maine, the natural death of a horse without the fault of anyone, while in the possession of the plaintiff in replevin, but before the determination of the action, was held a valid excuse for a failure to return it according to the condition of the replevin bond, in an action thereon. Melvin v. Winslow, 10 Me. 397. This decision is expressly disapproved in De Thomas v. Witherby, 61 Cal. 92, 44 Am. Rep.,542, supra.
In a subsequent Maine case, Walker v. Osgood, 53 Me. 422, the court distinguishes Melvin v. Winslow, and limits the rule therein laid down by holding that the death of an animal without fault, pending the replevin action, exonerates the plaintiff in replevin from liability in an action upon the replevin bond, if the replevin suit was instituted and prosecuted in good faith and in the honest belief of a good title. In New York, upon the principle that when