Walker v. Lion Fire Insurance

Opinion by Mr. Justice Fell, A nonsuit was entered in this case for the reason that it ■appeared from the testimony that a material change in the conditions affecting the risk had occurred between the time when the application for insurance was made and the time when it was accepted, and.upon the ground that the contract was not completed until after the property insured was on fire. The insurance was effected through the agency of G. T. Burd, who was the secretary of the Union Insurance Company. In determining the time at which the insurance went into effect it was important that the relation which Mr. Burd bore to the defendant ■company should be clearly defined. Upon this subject there was no direct evidence. It appeared that at 6:15 p. M. of August 9, Mr. Kavanaugh, one of the plaintiffs, called at the •office of the Union Insurance Company and asked Mr. Burd, the secretary, if he could insure bark, lumber and logs. Mr. Burd replied that he could, and asked whether there was any fire in the woods in that region. Mr. Kavanaugh said that he had no knowledge of any fire. The amount of insurance desired on each kind of property was stated, and it was then ■agreed that the insurance should go into effect as of noon of that day, and that the policy should be delivered at 8 o’clock in the evening. Mr. Kavanaugh did not call for the policy as arranged, and did not receive it until 2 p. m. of August 10, at which time he paid the premium to Mr. Burd. The Union Insurance Company acted as agent for other companies. The policy delivered was countersigned by the West Branch Insurance Company as agent. It was dated August 9, and went into effect at noon of that day, as had been agreed. At 5:45 P. M. of August 9, Mr. Kavanaugh received notice that there was a fire in the woods in the vicinity of his property, and at the time of the delivery of the policy a part of the property was on fire. If the contract was complete at 5:15 p. M. of August 9, that which occurred afterward is unimportant as affecting the rights ■of the insured. The contract was entered into at that time, if Mr. Burd had authority to make it for the defendant company. Upon the question of his authority, in considering the motion for a nonsuit, the plaintiffs were entitled to every inference of fact which might be reasonably drawn from the testimony. By [349] the pleadings, the execution and delivery of the policy were admitted. The defense set up was that the preliminary contract had been entered into and the policy issued by the' defendant company under the untrue representation that there was no-fire in the vicinity of the property insured. There was no denial of the authority of Mr. Burd to make the contract sued upon. When the plaintiffs offered in evidence the policy and proved the loss, their claim to recover was complete. Nothing was developed in the examination of Mr. Kavanaugh which shifted the burden of proof. The examination showed that Mr. Burd,, after a disclosure to him of the facts then known to Mr. Kavanaugh, had agreed to effect the insurance, and that in pursuance of the agreement he had delivered the policy and received the premium. Under the pleadings and in the absence of any proof upon the subject beyond the fact that the insurance was contracted for and the policy delivered, the plaintiffs were entitled to the-presumption that Mr. Burd iepresented the company and was-acting within the limits of his authority. If the action had been upon the preliminary agreement the burden of proof would have been with the plaintiffs to show the authority of the person with whom they contracted; but they were suing upon a. written agreement executed and delivered by the defendant and which by its terms imposed the liability which they sought to enforce. It was not the case of an attempt to establish an agency by proof only of the acts of the alleged agent. The defendant company issued the policy. By its terms it covered the risk from noon of August 9. If in fact it took effect from the time of the delivery only, the duty to show this rested upon the defendant. In reversing the case upon this ground we express no opinion on the merits of the plaintiff’s claim. The judgment is reversed with a venire facias de novo.