Blalock v. Millers National Insurance Co.

Eelton, J. (After stating the foregoing facts.) The gist of the first count seems to be that McJenkin, in the course of the exercise of his actual authority to deliver the draft, committed a fraud upon the plaintiff which justified her in relying upon his apparent authority to agree on behalf of the insurance company to repair the building. This count is without merit, because no fraud is alleged which justified the plaintiff’s failure to read the draft and the stipulation appearing over her indorsement. No emergency is alleged, and it is not alleged that the plaintiff could not read or could not understand the stipulations on the draft if she read them. If the plaintiff had read the draft the information gained thereby would have put her on notice that the insurance company had not elected to repair the building but had elected to pay her the amount she had claimed. She should and would have known that if the company desired to repair the building or have it repaired it would not have issued her a draft for her loss providing for a complete release under the policy. What has just been stated also shows that the second count is without merit. *473 The second count seems to be predicated on the idea that the plaintiff was justified in believing that McJenkin had apparent authority to make the contract, even if he did not commit a fraud justifying the plaintiff in signing the draft without reading it. The petition nowhere alleges that the McJenkin Insurance & Eealty Company, the agent which countersigned the policy, was a general agent of the insurance company or that it had authority to adjust the loss. In fact it is clearly indicated that the agent delivering the draft was performing a ministerial function of delivering to the plaintiff the amount of her claimed loss, whether in a draft or in cash. The plaintiff did not demand cash; so that issue is not involved. In addition to what has been said, attention should also be called to the fact that the insurance policy provided that “in any matter relating to this insurance, no person, unless duly authorized in writing, shall be deemed the agent of this company.” The many cases cited by plaintiff, involving authority of agents, adjusters, and agents authorized to deliver drafts, or make payment in cash if demanded, are distinguishable from this case on their facts. Neither count of the petition set out a cause of action, and the court did not err in sustaining the general demurrer and in dismissing the action as to the insurance company. Judgment affirmed. Sutton, J., concurs.