Willis Cab & Auto Co. v. General Accident, Fire & Life Assurance Corp., of Perth, Scotland

LEHMAN, J. The complaint herein alleges that on or about December 23, 1908, the defendant entered into a contract with the Elite Motor Service Company to insure and indemnify the plaintiff by reason of the liability imposed upon the plaintiff on account of injuries suffered by any person while being, conveyed as a passenger in certain automobiles owned by plaintiff; that the policy of insurance was issued to the Elite Motor Service Company, and the premium paid as provided by the terms of said policy; that the plaintiff was sued by one of its passengers, and a judgment recovered against it. The answer contains a general denial and a counterclaim, setting forth that the defendant entered into a contract on December 23, 1908, with the plaintiff to insure and indemnify it against loss by reason of liability imposed by law upon the plaintiff for various causes, and that plaintiff agreed to pay certain premiums at definite [102] periods; that a policy was issued thereunder, and on the 23d day .of December, 1909, the parties entered into a renewal agreement; and that a policy was delivered to and accepted by the plaintiff under the - renewal agreement, but that plaintiff has failed to pay the premium due thereon. These allegations were denied by the plaintiff. The sole question arising upon this appeal is whether the trial justice correctly directed a verdict upon the counterclaim. [1] At the trial it appeared that the policy issued in December, 1908, was obtained by certain insurance brokers, and the defendant was permitted, over plaintiff’s objection, to introduce testimony on cross-examination of one of the witnesses, that the brokers stated that they were acting as agents for the plaintiff. Obviously, agency cannot be shown by admissions of the agents. The plaintiff tried to show on its main case that these brokers were acting for the Elite Motor Company, and that the policy was issued to it; but an objection was sustained to these questions. It was apparently the theory of the trial justice that it was immaterial, upon the plaintiff’s cause of action whether the contract of insurance was made with the plaintiff or with the Elite Motor Company; for the defendant would be lia'ble upon its policy of insurance, if it delivered the policy, regardless of whether or not the plaintiff was the person who agreed to pay the premiums. [2,3] The plaintiff then was permitted to amend the complaint, so that it alleged merely that the defendant entered into a contract of insurance, without specifying the party with whom the contract was made. This amendment, however, did not act as an admission of the allegations of the counterclaim that the contract was made with the plaintiff, and certainly did not act as an admission that the renewal contract was made with the plaintiff. - To recover upon the counter-elaim, the defendant must show that by an agreement,- express or implied, the plaintiff agreed to pay the premiums upon the renewal policy. The mere issuing of the policy in favor of the plaintiff is insufficient, if the circumstances show no agreement on the part of the plaintiff to pay therefor. Northern Assurance Co. v. Goelet, 69 App. Div. 108, 74 N. Y. Supp. 553. [4] In this case the plaintiff is named as the assured; but the policy contains a rider that claims for damages to the automobiles, as distinguished from claims payable for loss by reason of liability ’imposed by law, were payable directly to the Elite Motor Company. The policy was delivered to the Elite Motor Company, and it is plaintiff’s claim that the Elite Motor Company was the party that agreed to pay the premiums; but the evidence upon this was excluded. It is true that the plaintiff did make some claims for damages under the renewal policy; but these claims were not inconsistent with the view that the Elite Motor Company was the party who agreed to pay the, premiums. Judgment should therefore be reversed, and a new trial ordered, 'with costs to the appellant to abide the event. All concur.