Lohnes v. Insurance Company of North America

Morton, J. The only question presented to us is whether there was sufficient evidence to justify the jury in finding a waiver of the proof of loss required by the terms of the policy. If we assume that, upon the testimony, the jury might find a waiver by William Archer, an agent of the defendant, it was yet for the plaintiff to prove that Archer had authority to make such waiver. The only testimony upon this point was that oí Trefry, who obtained the insurance for the plaintiff. He testified that Archer was the agent of the defendant, that he had dealings with him as such agent, and that Archer received applications for insurance, took risks and settled rates of premium, and issued policies for the defendant. This does not tend to show that Archer was the general agent of the defendant, authorized to transact all their business in Salem. It shows a special agency, with powers limited to one branch of the general business of the principal. It cannot fairly be inferred from this testimony that Archer’s powers extended to other branches of the business of the defendant, or that he had authority to adjust losses or to waive any condition of the contract. The case differs from the case of Eastern Railroad Co. v. Relief Insurance Co. 105 Mass. 570, relied upon by the plaintiff. In that case, the agent who waived the proof of loss was shown to be the general agent of the defendant, with power to adjust losses, as well as to make insurance and issue policies. [442] We are of opinion that there was no evidence in this case to justify the finding that Archer had authority to waive the preliminary proof of loss which t íe policy required the plaintiff to make. Harrison v. City Ins. Co. 9 Allen, 231. Tate v. Citizens’ Mutual Ins. Co. 13 Gra , 79. Shawmut Sugar Refining Co. v. People’s Mutual Ins. Co 12 Gray, 535. Exceptions sustained.