Petersburg Savings & Insurance v. Manhattan Fire Insurance

Speer, Justice. The Manhattan Fire Insurance Co. brought suit against the Petersburg Savings and Insurance Co. to recover on a policy of fire insurance issued by the latter, the same being a contract of re-insurance of a risk arising on a policy of the Manhattan Fire Insurance Co., of date 15th April, 1879, (No'. 112) and issued to G. M. Spencer, of McComb City, Miss. The jury, under the evidence and charge of the court, found for the plaintiff, and the defendants below filed a motion for a new trial, which was overruled, and defendant excepted. The grounds of the motion were substantially as' follows : (1.) Because the court refused to exclude from the jury the interrogatories of G. M. Spencer, because the cross-interrogatories were not fully answered, in this: that he did not produce, as required, the original books or a transcript to the court, nor the original invoices that a transcript might be made by said commissioners, and because the evidence was hearsay. (2.) Because the court did not exclude so much of sixth interrogatory as is marked in brief of evidence in the answer of G. M. Spencer. (3.) Because the court' did not exclude so much of Spencer’s answer as fixed amount of inventory of 30th September, 1876, the same appearing to be derived from his books. (4.) Because the court allowed to be read in evidence the certificate purporting to be signed by Robert Bacot, J. P., there being no proof of his handwriting. (5.) Because the court refused to charge, as requested in writing by defendant, as follows: — 458 — (a.) “If this policy of insurance was made by a person, who, at the time, was agent of the plaintiff and likewise of the defendant, then I charge you that the policy of reinsurance was void, unless it appears that at the time of the re-insurance the defendant knew that its agent was also-the agent of the plaintiff, and with this kno wledge, authorized the re-insurance, or by approval or other means ratified the same.” (b.) “ If the defendant’s agent was, at the time of making policy No. 13,437, the local agent of defendant, with power to underwrite for risks in Atlanta and its vicinity, then I charge you that such agency did not authorize the agent to insure against a risk in the state of Mississippi, and such policy would not bind the defendant until the act was ratified by the defendant, and it devolves upon the plaintiff to show such ratification.” (1c.) “ If the plaintiff did not waive notice and proof of loss, and paid the three thousand dollars on a proof of loss that did not comply with the condition precedent contained in the policy, then such payment was a voluntary payment, and defendant is not bound to pay any part of the same. Defendant’s liability is to pay five-ninths of what plaintiff was bound to pay or did pay, in full discharge of such amount as plaintiff was bound to pay.” (g.) “The total amount insured, as appears by the policy, is $7,000. You will first deduct $300 for furniture not' covered by defendant’s policy, and then defendant’s liability, if you find it to be anything, will be the amount proved to be lost in goods bears to the whole amount of goods insured, and as that amount bears to the particular amount insured by defendant.” (/«.) “ If defendant, by its agent, re-insured plaintiff, and on defendant being notified of the fact ordered the policy cancelled, and this was before the premium paid, then there was no necessity to offer to return the premium. The notice of the order of defendant to cancel the policy operated as a rescisión of the contract, and defendant — 459 — would not be bound by an agreement of defendant’s agent not to cancel the policy if at the time plaintiff was notified that the agent’s principal had'instructed the agent to •cancel it. Because the court committed error when it charged the jury, after charging, in substance, that “ the common agent of the principals could not make a contract to bind the principals, without -a ratifications by the principals for whom he contracted,” added these words, “ but if Raine was then the agent of the Manhattan company, and Stock-dell the agent of the Petersburg company, the court is of the opinion that Raine and Stockdell, if within their authority and in the scope of their duty to do such an act, it would be competent for them to enter into a contract of re-insurance, to carry on the negotiations and settle the terms of such insurance — then the Whitners, or either of them, might do the clerical part by writing out the policy and by affixing the signature to it.” “ On that branch of the case, as to whether a contract was executed in those forms — if what the Whitners did was only to carry out and put on paper the terms of a contract previously agreed upon by Raine and Stockdell, the court is of opinion it would be a valid contract.” (7.) Because the court, after charging that the Petersburg company had the right to cancel the policy on its own motion, at any time after its date, without assigning any reason for it, adds : “ Now the defendant, the Petersburg company, says that it did cancel; the other side says that it did not. You are to judge between them upon that issue. Here again we fall upon the principle of the disability of a common agent between two parties to make a contract. Cancellation of a policy, under such circumstances, would have to be done by contract; that is, it would have to be done by the action and intervention of parties; and if the Whitners were joint agents, or the firm the agent <?f one, and a member of the firm the agent of the other, they would be under the same disability to ef — 460 — feet the cancellation of a contract as they wonld be to create or bring into existence a contract. * * If the Petersburg determined upon a cancellation, and instructed the Whitners to effect it, whilst they would not be competent to make a contract or cancellation, yet the court is. of the opinion that they or either of them would be competent to convey information passingly.” (8.) Because the court charged, “even though the Peters-burg company may have resolved upon a cancellation, and even though they may have instructed their agents, John C. Whitner & Son, to demand an unconditional cancellation, if what Whitner communicated to Raine was not an unconditional demand of cancellation, but an expression of a desire upon the part of the Petersburg company that the policy should be cancelled, then the court is of the opinion that that would not destroy the policy, and that Mr. Raine would be authorized afterwards to go on and pay the premium under the original understanding— the contract had. between Stockdell and himself — and„ under that state of facts, the contract remaining after the fire occurred would be valid. You will observe that the issue here is, that it is contended on the part of defendant that the Petersburg company unconditionally refused to carry the risk, and demanded the cancellation. The plaintiff replies that what was communicated to Raine was not such an unconditional demand of cancellation, but an expression that the company desired to cancel. Now, if it was as contended for by the .plaintiff, then I have explained to you what the result would be — the policy would still subsist. If the fact was as contended by defendant, then the policy would be cancelled in law.” I. The first ground of this motion is alleged error on the part of the court in not excluding the interrogatories of Spencer, because, in answer to cross-interrogatories, witness did not attach the original books or a transcript to the answers, nor the original invoices. The answer is that the commission was executed in Delaware, and the — 461 — witness’ ledger, journal and cash-book, all that were saved from the fire, were at Summit, Miss., and he could not reasonably be expected to produce them to the commissioners. He could not have been required to produce and attach the original papers, only a transcript under the rule, and this was not demanded. To expect ledgers, journals or cash-books to be attached to answers, would scarcely be reasonable or necessary — and no transcripts from said books were sought for. 2. The second ground of error is in not excluding so much of the answer to the sixth interrogatory as is marked in the answer of G. M. Spencer. In certifying this ground the court says: “ The court ruled out a part of the sixth and seventh interrogatories, and ruled in a part; subsequently defendant’s counsel tendered in evidence those parts which had been previously excluded on their motion, and also exhibits A, B and C from the interrogatories, and mentioned therein. This testimony was ruled in over objection of plaintiff’s counsel. 22 Ga., 607. 3. The third ground of error is in not excluding so much of Spencer’s answer as fixed the amount of the inventory of September 30th, 1876 — the same appearing to be derived from his books. The witness testifies positively as to an inventory made by himself and clerk, exhibited to the interrogatories, and if the inventory was entered on his books, and the books are inaccessible and beyond the jurisdiction of the court, we see no reason why this original may not be .proved by the witness who made it and verified its accuracy. 4. As to the objection to the introduction in evidence of the certificate of R. Bacot, J. P., on the ground that Bacot’s signature was not proved, a witness, Gatlin, did testify that the certificate was in the handwriting of Stock-dale, attorney, and Bacot, justice of the peace, and it might reasonably be inferred from this testimony, the witness meant Stockdale had written it and Bacot had signed it as justice of the peace. As to its admissibility, see 36 Wis., 522 ; Wood on Ins., 710; 9 Cent. L. J., 190. — 462 — 5. As to the alleged errors assigned on the refusal of the court to charge the jury as set forth in the fifth ground of the motion, and his charge as given on these points, we think the law of the case was given substantially and clearly in the instructions he did give to the jury. The refusal to charge complained of in the fifth ground was, “ That if the policy of insurance was made by a person who. at the time, was agent ^for plaintiff and likewise agent for defendant, that the policy of re-insur- . anee would be void, unless it appears thát at the time of re-insurance the defendant knew that its agent was also agent of plaintiff, and with this' knowledge authorized the re-insurance or ratified the same.” Without deciding whether this was a legal request, we think it was substantially given, when in another part of his charge the court did instruct the jury (whether right or wrong we do not decide) that the common agents of the principals could not make a contract to bind the principals without a ratification by the principals. 6. So as to the other refusal to charge as requested complained of by defendant in this ground of the motion, “ That the re-insurance policy issued by the local agent of the company appointed for Atlanta and its vicinity was void, because said risk was taken on property in Mississippi, unless the act was ratified,” it is sufficient to say, that the charge was inapplicable to the case as made and relied on by plaintiff. They claimed the insurance was effected by Raine the general agent of plaintiff and Stockdell the special agent of defendant, and that Whitner'& Son only executed at their order the policy as clerks. Under the law of the cause as ruled by the c.ourt, they could not hope to rely upon the policy as issued by Whitner & Son alone. It is also complained by the defendant in this ground that the court refused to charge that, “ If the plaintiff did not waive notice and proof of loss, but continued- to require proof of loss and paid the $3,000.00 on a proof of loss that did riot comply with the — 463 — condition precedent contained in the policy, then such a payment was a voluntary payment, and this defendant was not liable for any part of said voluntary payment.” We think under the evidence furnished of the original loss submitted on this trial to the jury, there was sufficient to justify the plaintiff to make the payment of the $3,000.00 to the assignee of Spencer, and under this view the charge requested was not proper to be given to the jury. It must be borne in mind that the defendant below introduced the very proof of loss that had been served on the plaintiff by the party originally insured, and which had by plaintiff been served on defendant. Neither do we find any error in the court’s refusal to charge as to the cancellation of the policy, as requested by defendant and as set forth in the latter part of the fifth ground of error in the motion. We think the court gave the law upon this point substantially in the seventh and eighth grounds of error complained of in the motion, and having so charged it, it was not necessary to repeat the charge requested by defendant, even if it had been correct. 7. In the sixth ground of the motion it is alleged that the court erred, in charging as requested by defendant, “ That -the common agents of the principals could not make a contract to bind the principals without a ratification by the principals for whom he contracted,” by adding to said request these words, “ But if Raine was then the agent of the Manhattan company, and Stockdell the agent of the Petersburg company, the court is of the opinion that Raine and Stockdell, if within their authority and in the scope of their duty to do such an act, it would be competent for them to enter into a contract of reinsurance to carry on the negotiations and settle the terms of such insurance, then the Whitners, o.r either of them, might do the clerical part by wiiting out the policy and affixing their signature to it, and that would be a valid contract.” The request as thus modified is objected to as not being supported by evidence. — 464 — The recovery of plaintiff rested mainly under the law of the case as thus given in charge, for the court had instructed the jury that no contract of insurance made by Whitner & Son as the. common or dual agents of their principals would be valid or binding unless ratified by the company. It was only by the alleged intervention and authority of the agents, Raine and Stockdell, as being the respective several agents of these companies that this policy could be sustained. We have therefore carefully examined the record as to the testimony on this point. Raine, testifying when asked as to what passed between him and Stockdell as to this policy, says: “ We had a daily report coming to our office (the plaintiff’s), of a larger line than we desired to carry, and I asked Mr. Stockdell if he would re-insure a portion of it, and he said he would, and chat he would instruct the agents to issue policy. We made up our daily report, sent it over to the office of the Petersburg Insurance Company, and Whitner & Son issued the policy. I paid the premium,” etc., etc. In his cross-examination he says : “ I understood Mr. Stockdell to take this re-insurance for me, the policy was sent down to the Petersburg company, and they issued this policy.” Mr. Stockdell, a witness for defendant, proved that he was special agent of the Petersburg Insurance Company, and had authority to direct agents here to issue risks. When being interrogated as to this policy, he said : “At the time this policy was written I had some talk with Mr. Raine as to that particular risk. I stated to him I would authorize the risk. I had no talk with him about the general business, but it was in relation to that particular risk. I said I would instruct Whitner, the local agent, to write the policy.” Under our view of the law, we think the instruction of the court to the jury as set forth in this sixth ground was fully justified and sustained by the proof. 8. The complaint of the charge of the court, as set forth in the seventh ground, is as to the law of cancelling — 465 — policies. We think the rule was stated clearly and succinctly by the court. Here the court charged, “ that the common or dual agents would not be competent to cancel, but they would be competent to convey the information passingly” of the company’s wish or desire to cancel, but Feld that the notice of the purpose or determination of the company to cancel must be made or given ' unconditionally, “ that a mere expression of a desire upon the part of the Petersburg company that the policy should be cancelled would not destroy the policy.” We think the charge was properly and succinctly submitted on this point to the jury — so plainly that they were not liable tobe misled thereby. 45 Ga., 297; Wood on Ins., 231 ; May, pp. 68, 69; 8 Ins., L. J., 45. 9. It is further objected that in the eighth ground of the motion setting forth the charge of the court, the court expressed an opinion on the testimony to the jury in stating “ that Mr. Raine would be authorized after-wards to go on and pay the premium under the original understanding — the contract had between Stockdell and .himself.” Were this the only reference to this understanding or ■contract between Raine and Stockdell in the charge, this ground of error might be of great force and effect, but in other parts of his clear and elaborate charge in this case the judge had instructed the jury most impartially to consider and determine whether there was any such contract proved or established. In his view of the law the recovery of the plaintiff rested upon the existence of. this contract and of its being satisfactorily established; for he .had instructed the jury that the policy, if issued by these -dual or common agents without the sanction or approval of the principals, would not be valid unless afterwards ratified. We must, therefore construe the charge excepted to here in the light of the whole charge, and hold that the court was referring to an “ understanding or contract ” between Raine and Stockdell, which he had be — 466 — fore that distinctly left to them in his charge to find whether or not it existed. While this portion of the. charge would be error if not explained or modified by the-charge itself, yet we must give it that reasonable construction that the intelligent mind would decide it should be entitled to. The correctness of a charge must be determined by the whole when taken together, 11 Ga., 331 ; 7 Ib., 457; 9 Ib., 539; 19 Ib., 1. ■In carefully, then, reviewing this whole record, both as to the law and evidence, we find no such errors as would lead us to control the discretion of the court below in refusing this new trial. Judgment affirmed.