Opinion
December, 1905.
Philip Lindsley, for the appellant.
Henry Melville, for the respondent.
This action was brought to recover the sum of $300 — premium alleged to be due on a policy of fire insurance. Defendant took out what is termed a floating fire insurance policy in the plaintiff company, for which it paid a premium of $300 to one Elliott. Elliott paid the same to one Carroll, who absconded without turning the money over to the plaintiff. The sole question presented for determination is whether Carroll, at the time the payment was made to him, was the agent of the insurance company or the agent of the defendant. The action was originally brought in the Municipal Court of the city of New York, where, after a trial had, it was determined that Carroll was the agent of the insurance company, and that the payment by the defendant to him was a payment to the plaintiff. An appeal was taken from the judgment to the Appellate Term, where the same was affirmed, and the plaintiff, by permission, now appeals to this court.
I am of the opinion that the judgment is right and should be affirmed. The plaintiff's cashier, Lindsay, testified that between the 1st of January, 1902, and the fifth of June of the same year, the plaintiff issued, through Carroll, some nineteen different fire insurance policies, of which that issued to the defendant was one; that the policies were delivered to Carroll, and he was expected to collect the premiums, and if the policies were floating policies, he was to receive ten per cent commission on the premium collected, which was the sum agreed upon between him and the plaintiff; that the policy issued to the defendant was delivered to Carroll, and he was expected to collect the premium, for which his commission, according to the agreement, was to be ten per cent, and that on the books of the plaintiff there was no account with the defendant, except as there appeared an entry of the issuance of the policy under Carroll's name. This testimony was not contradicted in any way. The proof showed that the defendant did not deal with Carroll. Its dealings were with Elliott, who, when the policy was delivered to him, paid Carroll the premium. Upon these facts, it seems to me Carroll was the agent of the insurance company. It paid him for getting the insurance. The policy was given to him for the purpose of delivery to the insured, and when such delivery was made, he was to collect the premium and turn it over to the insurance company, less his commission.
But it is said that Carroll was not the agent of the insurance company in receiving the premium because the policy contained the statement that "no person, unless duly authorized in writing, shall be deemed the agent of this company." These words in the policy only apply to matters connected with the making of the contract. Here the plaintiff insists that the contract was made, and by reason thereof it became entitled to the premium. To determine what arrangement was made as to the payment of the premium, therefore, we have a right to look outside of the contract. ( Hermann v. Niagara Fire Ins. Co., 100 N.Y. 411; White v. Connecticut Ins. Co., 120 Mass. 330.)
In the Hermann case there was a clause in the policy declaring that any person other than the assured procuring the policy should be deemed the agent of the assured and not of the company in any transaction relating to the insurance, and it was held that this did not constitute such person a continuing agent or make notice to him, after the policy went into effect, binding upon the assured.
In the White case the policy contained a similar provision, and that the insurance company should not be liable by virtue of the policy until the premium therefor had been actually paid. There the insured received from one Hunt the policy, and, under an arrangement which he had with one Darling, who was the general agent of the insurance company, he was to collect the premium. When Hunt delivered the policy the premium was not paid. Subsequently the company through Darling notified Hunt that it did not wish to take the risk, and thereafter a loss occurred. It was held that a recovery could be had, notwithstanding the provision of the policy, the court saying: "The provision in the policy making the person who procures the insurance `the agent of the assured in all transactions relating to the insurance' cannot be construed to mean that such person shall be agent to receive notice of the termination of the insurance at any time during the life of the policy; it plainly refers to the original transactions connected with obtaining it."
Here, whether Carroll, in accepting the premium, acted as the agent of the insurance company or of the defendant was a question of fact to be determined by the trial court. ( Greenwich Insurance Co. v. Union Dredging Co., 14 Daly, 237.) It having found that he was the agent of the insurance company, and there being proof sufficient to sustain the finding, the judgment appealed from must be affirmed.
The determination of the Appellate Term is, therefore, affirmed, with costs.
O'BRIEN, P.J., LAUGHLIN and HOUGHTON, JJ., concurred; INGRAHAM, J., dissented.
Determination affirmed, with costs.