In Bodine v. Exchange Fire Insurance Company (51 N.Y. 117), it was said by EARL, Commissioner, at page 123: "We know, according to the ordinary course of business, that insurance agents frequently have clerks to assist them; and that they could not transact their business if obliged to attend to all the details in person, and these clerks can bind their principals in any of the business which they are authorized to transact.Summary of this case from Arff v. Star Fire Insurance
Argued May 10, 1872
Decided September term, 1872
J. Langdon Ward for the appellant. A.R. Dyett for the respondents.
Notwithstanding the condition in the original policy, that no insurance, whether original or continued, should be considered binding until the actual payment of the premium, it was still competent for the insurance company to disregard this condition, and upon any renewal of the policy to waive by parol the payment in cash of the premium, and this waiver of payment could be shown by direct proof that credit was given or could be inferred from circumstances, and the waiver could be by the company or any of its authorized agents. This is too well settled to be longer the subject of discussion or dispute. ( Goit v. The Nat. Protection Ins. Co., 25 Barb., 189; The Trustees of First Bap. Church v. The Brooklyn F. Ins. Co., 19 N.Y., 305; Sheldon v. The Atlantic F. M. Ins. Co., 26 id., 460; Wood v. Poughkeepsie Mut. Ins. Co., 32 id., 619; Boehen v. Williamsburgh Ins. Co., 35 id., 131.) In the case from 19 N.Y., Judge COMSTOCK says: "A provision in a policy already executed and delivered, so as to bind the company, declaratory of a condition that premiums must be paid in advance, manifestly has no effect, except to impart convenient information to persons who may wish to be insured. As such a provision in the policy in question could have no effect upon the delivered and perfect contract in which it was contained, so it could have none to prevent the same parties from making such future contract as they pleased. In any subsequent agreement for a renewal or continuation of the risk, it was competent for the parties to contract by parol and to waive the payment in cash of the premium, substituting therefor a premium to pay on demand or at a future day. Proof of such an agreement would have no tendency to contradict or to change the written policy already in force between the parties, and which would be wholly spent before the new agreement could take its place."
We must infer that John Whelp had all the power of ordinary insurance agents. He had acted for this company for nine or ten years in procuring risks for it and in delivering policies and renewal certificates. His name was indorsed upon the original policy as the company's agent. It was, therefore, according to the decisions above cited, just as competent for him to waive the condition of prepayment as for any other officer or agent of the company. But conceding this, it is claimed on the part of the appellant that his son, Charles Whelp, had no authority to waive the prepayment of the premium so as to bind the company. Charles had been the clerk and assistant of his father for three or four years. He had procured policies and renewal certificates from the company and frequently delivered them to the persons insured, waiving prepayment of the premiums. All this he did with the knowledge and assent of his father, and hence we must infer that he was authorized by his father to do it. The agency of John Whelp was not such as to require his personal attention to all the details of the business intrusted to him. We know, according to the ordinary course of business, that insurance agents frequently have clerks to assist them; and that they could not transact their business if obliged to attend to all the details in person, and these clerks can bind their principals in any of the business which they are authorized to transact. An insurance agent can authorize his clerk to contract for risks, to deliver policies, to collect premiums, and to take payment of premiums in cash or securities, and to give credit for premiums, or to demand cash; and the act of the clerk in all such cases is the act of the agent, and binds the company just as effectually as if it were done by the agent in person. The maxim of delegatus non potest delegare does not apply in such a case. (Story on Agency, § 14.) If the agent or his clerk waive the prepayment of premiums without authority from the company, it can lose nothing, as the agent becomes responsible for the amount of the premiums, as if the same had been paid to him in cash.
There is another reason for holding the company bound by the act of Charles Whelp in waiving prepayment of the premium. It delivered to him the renewal certificate, and thus clothed him with apparent authority to deliver the same to the assured. If he had delivered it to them without exacting payment of the premium or saying anything about it, according to the cases above cited, it would have been inferred that prepayment was waived, and the company would have been bound. If his mere silent delivery would have had this effect, much more will his express waiver make the renewal effectual to bind the company.
There was some evidence tending to show that the plaintiffs accepted the certificate, and that it was arranged that Charles Whelp should hold it for them until a future day, when they would pay the premium. Hence the court committed no error in the refusal to dismiss the complaint and in the charge to the jury.
The judgment must, therefore, be affirmed with costs