Dickinson County v. Miss. Valley Insurance

Cole, J. — The evidence in the case tended to show that the application for the policy was taken by one Gaylord Graves, who had no authority to issue policies, but only to receive applications and forward the same to the company, who determined as to the issuance of jiolicies upon applications so forwarded. The evidence also tended to show that the premises were used after the issuance of the policy for such purposes as increased the risk, and that Graves had an opportunity to know this fact. The court instructed the jury as follows: 1. “If you find that Gaylord Graves was the agent of the defendant, who took the application of the plaintiff, and do not find his agency a limited one, he will be deemed to have been a general agent, with power to bind the company by acquiescing in or consenting to changes in buildings insured and the purposes for which they may be used.” 2. “If his agency was a limited one, and plaintiffs knew that fact, then he could only bind the company to the extent of his powers as agent.” 3. “If you find that the court house was used for other purposes than those stated in the application, or other than those for which it was being used at the time the application was made and the policy issued, and of which the agent who took the application had knowledge, and that such other uses increased the risk, then you will inquire whether the company, through its agent, had notice that it was being used for such other purposes; and if you find that the company, through its agent, had such notice, and made no objection, it will be deemed to have acquiesced in such uses and cannot now complain.” [290] , „ character*of agency. [289] The first instruction in effect announces the doctrine that," [290] when one is shown to be an agent of another, the law will presume him to be a general agent; for it will be °kserve<i that the instruction does not require the jury f[nd that he was a general agent, but that if it was not shown that he was a limited agent, they should find that he was a general agent. This was error, for the law-does not presume that he was either a limited or a general agent. The character of his agency is a question of fact for the jury to find upon the evidence submitted to them in the case. It would have been very proper for the court to have instructed the jury what was necessary to constitute a limited agent and a general agent. For the error in this instruction the judgment must be reversed, and it becomes unnecessary to discuss at length the instructions given and refused. 2, _T:_: insurance. It may be proper, however, to remark that the elements of knowledge by plaintiff as to the extent of the agent’s authority, as stated in the second instruction, may have misied the jury. The real question is, what was the extent of the agent’s authority, and not what was the extent of the plaintiffs’ knowledge of it. The third instruction continues the same erroneous idea in the closing sentence which says, that if the jury “find that the company, through its agent, had such notice and made no objection, it will be deemed to have acquiesced.” If the agent’s authority was limited, and he had no further authority in connection with that policy than to take the application therefor, then notice to him would not bind the company. See Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176 (i.e., 190); Anson v. Winneshiek Insurance Co., 28 Iowa, 84. Reversed.