Lancashire Insurance v. Nill

Mr. Justice Gordon delivered the opinion of the court, This case is all wrong. In the very outstart, under the defendant’s plea of non est factum, it was the plaintiff’s business to prove the execution of the policy sued upon; but this was not done; nevertheless the court, notwithstanding the defendant’s objection, admitted it, and sent it to the jury with the instruction that they should treat it as the defendant’s deed if they found that it was countersigned by Brown & Beggs, and if they were also satisfied that these persons were the company’s agents. In this there was double error, for neither was the execution of the policy proved, nor the agency of Brown & Beggs. “ It purports,” says the court, “ to have been signed by Henry Robinson, the United States manager, and countersigned by Brown & Beggs, at Harrisburg. Mr. Nill tells you that it was received by him from Mr. Brown, of the firm of Brown & Beggs, and that'Brown & Beggs claimed to be the general agents of the company at Harrisburg; he treated with them as such. Then you are told further that the adjuster, or one representing himself to be the adjuster of the company, came here and saw Mr. Nill in reference to the fire.” All this, however, is assumption without evidence for its support. We have examined the testimony in vain in order to discover such proof as would warrant the submission of such statements to the jury. There is nothing to show that either Henry Robinson or Brown & Beggs had any authority whatever to sign or countersign the defendant’s policies. In this branch of the case, therefore, the plaintiff signally failed, and the court should so have instructed the jury. But admitting the execution of the policy and the agency of Brown & Beggs, and still the plaintiff was not entitled to the verdict. The court directed the jury to determine whether Brown & Beggs were not acting as agents as well for the plaintiff as for the Lancashire company. Of this howev.er, there was no evidence ; the very contrary. _ Nill obtained the Clinton policy from these agents and paid them the premium through the medium of the post office, and never had a personal interview with either of them until the 11th of August following. Mrs. Nill had no agent but her husband, nor was any other necesary. She desired no change; the Clinton policy was perfectly good, and could not be cancelled without notice to her, and neither she nor her husband knew of the action of Brown & [255] Beggs until the date above mentioned, which was after the loss, when these men imposed alike on Nill and the defendant by inducing him to surrender the Clinton policy and accept the one now in suit. A brief history of this transaction is found in his affidavit of the 17th of August, 1882, wherein Nill testifies: “On Friday morning the llth instant, I took the 8.23 A. M. train at Greencastle for Harrisburg, arriving there about 11 A. M. I went from the depot to Brown & Begg’s office, where I was obliged to wait till after 12 M. before I saw said Mr. Brown. Mr. Brown came to the office. He had to tell me the Clinton Insurance Company had, about the 1st of August 1882, cancelled their policy on the said mill, and that he had put us in the Lancashire Fire Company, but he neglected to notify us of the change. I then asked him if it would make any difference in the exchange, or whether our rights would be affected or prejudiced by the exchange. He, the said Brown, then said it would not, as the company he had put us in was a first class company. I then gave him, the said Brown, the said Clinton policy, and he gave me the Lancashire policy. This was the first notice we had received of any change or any desire for a change.” From what is here said, and it accords strictly with his evidence given on the trial of the case, it is very clear that Brown’s previous action was without warrant from the assured, and it will, we presume, hardly be pretended, that, had Nill on the llth of August, refused to surrender the Clinton policy, Brown’s pretended cancellation of it would have released that company from its obligation to Mrs. Nill. But if the Clinton policy was still in force on the llth of August, 1882, two days after the fire, the action of Brown & Beggs in the delivery of the Lancashire policy as a substitute for that of the Clinton company, was a mere attempt to shift the loss from the company upon whom it had fallen, to the other which, at the time of the fire, had assumed no responsibility. It requires no argument to show that this could not be done, and that the attempt to accomplish a design of this kind was a fraud on the defendant. Neither does it appear from the evidence that the defendant received a premium as a consideration for its policy. The court allowed the jury to infer that as Brown & Beggs were agents for both the companies as well as for Mrs. Nill, and as on cancellation of the first policy the unearned part of the premium must be refunded, therefore, these agents received this money thus due the plaintiff, and paid it on the Lancashire policy. This might have been so, but as there was no evidence of it, the court ought not to have devised and sent to the jury a theory that had no foundation in fact. Following the regular order of business, and the return premium would [256] not be payable to the insured until the policy had been surrendered, and, of course, until after that time there was nothing in the hands of Brown & Beggs belonging to the plaintiff which could be paid to the defendant. Thus, however we view this case, we discover no foundation of fact on which it can rest, or which could warrant a submission of it to the jury. The judgment of the court below is reversed, and a new venire awarded.