Wilson against The Genesee Mutual Insurance Company

Wilson against The Genesee Mutual Insurance Company. Where, by the terms of a policy of insurance, any other insurance is required to be notified to and approved of by the insurers, a local agent, who is' declared by a written appointment to be “ regularly appointed an agent and surveyor of the company ” and to be “ duly authorized to take applications for insurance,” has no authority to approve of a subsequent insurance. His authority is limited to that expressly given him by the appointment. Action upon a policy of insurance against loss to goods by fire, to the amount of $2000, issued by the defendant to A." H. Dixon & Co., a firm composed of A. H. Dixon and S. G. Goss. The defendant was a mutual insurance company, whose charter was the same as that of the Jefferson County Mutual Insurance Company. (Laws of 1836, ch. 41.) The policy was issued the 25th of .December, 1849. It contained the following provision: “ Provided further, that in case the asssured shall already have made any other insurance against loss by fire on the same property herein insured, not -notified to this corporation, or in case the assured or the assigns of the assured shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this company and have the same indorsed on this instrument or otherwise acknow¡edged and approved by them in writing, this policy shall cease and be. of no further effect.” On the 1st of March, 1850, the firm having dissolved, Goss assigned all his interest in the goods insured to Dixon; and subsequently Dixon obtained a further insurance on the goods in the Columbus Insurance Company. He took the policy to the agent of the defendant, through whom he obtained the first policy, who made a memorandum upon the face of the policy of the defendant of the subsequent insurance, stating that it was accepted, to which he signed his name as agent. The insured parties and the agent resided near Kalamazoo, in Michigan. The appointment of this agent was in writing, executed by the defendant under its corporate seal, and it stated that Park, the agent, had “been regularly appointed an agent and surveyor of the Genesee Mutual Insurance Company, and is duly authorized to take applications for insurance in the said company.” It was proved that the agent was accustomed to take applications, to make surveys, receive moneys and negotiate the amount of premiums. In the case of this insurance, he received'the application and transmitted it to the office of the company, in Genesee county, New-York, and the policy was sent the insured by mail. After the subsequent insurance, the property was damaged and destroyed by fire to the amount of between three and four thousand dollars; and Dixon assigned the policy and the demand upon it against the defendant to the plaintiff. On the trial, before Justice Roosevelt in New-0York, the foregoing facts were proved. ' The counsel for the defendant, among other objections to any recovery by the plaintiff, insisted that the subsequent insurance in the Columbus Insurance Company rendered the policy issued by the defendant void, because such subsequent insurance was not notified to and accepted by the defendant,' as provided by the policy. The defendant also insisted upon other objections to a recovery, but as this court did not pass upon these other questions they are not stated. The judge overruled the objections, and held the plaintiff was entitled to recover. Verdict and judgment accordingly. The judgment was affirmed at a general term in the first district. The defendant appealed to this court. H. R. Selden, for the appellant. John Sherwood, for the respondent. [MAJORITY — Comstock, J.] Comstock, J. One of the provisions of the policy was, that if the insured or his assigns should obtain any other insurance on the same property the policy should be void, unless within a reasonable time the additional insurance should be notified to the company and indorsed on the instrument, or otherwise approved in writing. A subsequent insurance for $2000 having been procured from another company, it is conceded that the policy in question is void, unless the condition has been complied with; and the question is, whether Park, the agent, who assumed to approve of the second insurance, acted by authority derived from the defendants. The appointment of Mr. Park as agent was in writing, and under the corporate seal of the defendants; and by its terms it declared that he “ had been regularly appointed an agent and surveyor of the company, and was duly authorized to take applications for insurance.” This was the only express authority which the agent ever received from the company, and there is no evidence in the case from which any other can be implied. It does no^ appear that he was ever held out to the world by his principals as possessing any power not included in his written appointment, or that he ever performed any acts as agent, until the one now in question, which that appointment would not in terms justify. The defendants, therefore, are not bound by his approval of the subsequent insurance, unless that act is included within the written power. What, then, is the construction of the writing from which the agent derived his authority? It is open to only twTo interpretations. One is, that it constitutes an agency limited to receiving applications for insurance, and, of course, communicating them to the company; the other, that there is no limitation. The writing first declares that Mr. Park is appointed agent. This is general and unlimited, unless by the declaration immediately following, that he is duly authorized to receive applications. If we measure the authority by the first clause only, then there is nothing to restrict it, and the agent may make contracts of insurance, adjust losses, approve of subsequent policies, and, in short, wield all the powers of the corporation. If we take the succeeding clause as a qualifying and restricting one, it defines the agency precisely. It .is then confined to the negotiation of contracts, without authority to bind the company at all; and this, in my opinion, is the true construction. If the agency is not thus qualified, .but, on the other hand, is general, then the last clause of the writing has really no meaning or force at all. It neither adds to nor subtracts from what precedes it. A general authority is first created, and then a very limited one is specially given. This, I am satisfied, wras not the intention of the author of the power. The design was to constitute an agency with the powers specified and no others. If this be not so, then, I repeat, the writing suggests no limitation whatever. The agency is either general, and extends to all the business of the corporation; or it is limited to surveys and receiving applications. There is no middle ground, and between these two constructions there is no room for hesitation. In the case of McEwen v. The Montgomery County Mutual Insurance Company (5 Hill, 101), there was a provision in the policy that it should be void in case the assured had already made any other insurance not notified to the company. There was a prior insurance, but notice of it was given to the traveling agent of the company, whose authorized business was to solicit insurances, make surveys and receive applications. It was held that the notice was sufficient, and the policy was accordingly adjudged to be valid. The powers of the agent in that case and in the present one are quite similar; and I have no doubt that notice to Mr. Park, at the time of receiving the application, of the prior insurance, would be good. He was authorized to negotiate contracts of insurance, and therefore any facts which the company required to be made known before entering into the contract might properly be communicated to the agent. A prior insurance is a fact which enters into the negotiation and then into the contract. The fact may therefore be notified to the agent who negotiates, and it is his duty to communicate it to his principals before the contract is com eluded. But I cannot see that it is any part of the duty of such an agent to deal with the assured, in any respect, after the policy is issued. The agent’s functions have then ceased in respect to that contract, and he has no power to save it from forfeiture by his approval of a subsequent insurance. It was suggested on the argument that the defendants are estopped from insisting that the policy is void by reason of having made an assessment on the premium note which was paid by the insured. It does not appear, however, when the assessment was imposed, nor whether the payment was made to any one authorized to receive it. The evidence, I think, is not such as to present the question of estoppel. The judgment should be reversed and a new trial granted. Denio, C. J., A. S. Johnson, Selden and Hubbard, Js., . concurred in the foregoing opinion. T. A. Johnson, J., took no part in the decision. Wright and Mitchell, Js., dissented. Judgment reversed