Continental Insurance Co. of New York City v. Allen

McAllister, J. If Lewis, at the time Allen applied to him for marine insurance upon the vessel in question, on the evening of November 19, 1884, and before the loss, had been the agent of the insurance company, defendant herein, and had the actual or apparent authority to bind the defendant by a contract of insurance, and, as such, had entered into sncli a contract on behalf of the defendant at that time and received the premium, then such contract would have been binding, although the vessel had been lost intervening that time and that of the making of the certificate of insurance. Perkins v. The Washington Ins. Co., 4 Cow. 645. In that case the policy or certificate, even if not delivered until after the loss, would take effect by relation, as of the time when the premium was paid and the contract concluded, provided, of course, that the certificate or policy contained no terms inconsistent therewith. Lightbody v. North American Ins. Co., 23 Wend. 18; Jackson v. McCall, 3 Cow. 75. It was substantially upon such a theory of the law that the instruction given on behalf of the plaintiffs (and set out in our statement of the case), was based. But the difficulty with it is, that upon the facts of the case, as they were developed by the evidence, no such rule of law can arise. In the light of the evidence Lewis can be regarded only as the agent of the plaintiffs. There was no evidence in the case tending to show that he possessed any authority, actual or apparent, to make any contract of insurance on its behalf. Hot only that, but to i-epel any inference of that kind, the defendant offered to prove by direct testimony the want of all authority on the part of Lewis to act for the defendant, and the trial J udge rejected it. If Lewis was the agent of plaintiffs and not of defendant, as we have stated, then it is clear that the transaction between him and Allen on the evening of Hovember 19th, at Muskegon, as to which the defendant was, in no respect, constructively or otherwise, a party, could have no effect whatever in conferring a right upon plaintiffs, or creating a liability as against the defendant. The instruction was, therefore, a plain misdirection of the jury by the court, and was prejudicial to the defense which the defendant had a right to make, viz., that no contract was consummated with defendant until the delivery of the certificate of insurance, prior to which the loss occurred which was known to plaintiffs and unknown to defendant, and by the former and their agents concealed from the latter. 1 Parsons on Marine Ins. 469, and cases in notes. For giving that instruction the judgment must be reversed and the cause remanded. Judgment reversed.