American Insurance v. Hampton

Battle J. Appellees instituted this action against appellant to recover $600 on a policy of fire insurance. The policy sued on contained a clause in the following words l “ If the assured * * * shall have or hereafter make any other insurance on the property herein covered, or any part, thereof, without notice to and consent of this company in writing hereon, * * * then, and in every such case, this policy shall be null and void.” The defense to the action was-that the appellees, in violation of their agreement, procured, other insurance upon the property described in the policy sued upon, for the sum of $400 dollars, in a company known as the New Orleans Insurance Association, without the-knowledge or consent of the appellant. The facts are: Sometime about the first of July, 1887,. T. P. Cole, as agent of the appellant, made out an application for insurance for appellees, and in about a week thereafter delivered to them a policy executed by appellant, it being the policy sued on in this action. Thereafter, sometime in the month of October next following, he made out another applicatien for the same parties for additional insur— anee in the New Orleans Insurance Association, and in a short time afterwards delivered to them a policy issued by the New Orleans Insurance Association upon the property covered by the first policy. Both applications were signed by appellees; and the premiums on both policies were paid by them at the time the sanie were respectively delivered, insurance agent—Apparent authority. In order to entitle appellees to recover in this action.it was necessary for them to prove that appellant, or its authorized agent, consented to appellees taking the additional insurance in the New Orleans Insurance Association. It was not sufficient to show that such consent was given by Cole, as agent of appellant. For the consent of Cole to be of any effect it devolved on appellees to show', not only that he was agent of appellant, but that the consent given was within the real or apparent scope of his authority. But no such evidence was adduced on the trial. The only evidence that Cole had such authority was that he was local agent of appellant in Greene and Clay counties, in this State, and had authority to solicit insurance, receive and write applications for insurance, and forward the same to appellant’s general agent, and when an application was granted and they forwarded to him the policy filled out and signed, to deliver it and collect the premium. But this was not sufficient to prove that he had authority to alter any of the essential provisions of the policy sued on, or to waive forfeitures for a breach of any of its conditions, or to consent to the additional insurance. There was nothing in the nature and requirements of the business intrusted to him from which such authority could be reasonably inferred. On the contrary, they show that he was not given authority to fix any of the terms of the insurance or conditions upon which appellant would become liable for the loss of property insured. From this fact the reasonable presumption is, he had no authority to waive any requirement of the policy intended to protect the appellant, or to consent to any act that would increase its risks—to determine how or in what event it should be liable. There was no evidence that appellant had notice of, or consented to, the additional insurance, or that Cole did any act within the real or apparent scope of his authority which was a waiver of the forfeiture incurred by the additional insuranee. The verdict of the jury was not sustained by evidence. Reversed and remanded.