Cronin v. Coyle

Plaintiff in this action secured judgment against defendants for the sum of $3,062, as damages for injuries sustained by her as a result of the negligent operation of a taxicab in which she was a passenger and being transported over a street in the city of Los Angeles. Defendant Mercer Casualty Company alone appeals from the judgment, and also attempts to appeal from an order denying a motion for new trial.

In a rather formidable and voluminous opening brief appellant states six questions as those involved in the appeal, and specifies as error (1) the admission and retention in evidence, over objection and against a motion to strike, of exhibit 1, being the policy of public liability insurance upon which plaintiff founded appellant’s liability; (2) the denial of appellant’s motion for nonsuit; (3) the making of findings contrary to evidence in respect to issuance of the policy, its continued existence in force and effect at the time of the accident herein, its cancellation as pleaded in the answer, and its annulment by issuance of a policy by another company as pleaded in the answer, and (4) in denying appellant’s motion for a new trial.

This brings us to the more serious and difficult question as to the sufficiency of the evidence to support the finding that such policy was in full force and effect on December 6, 1931, on which date the accident herein complained of occurred. This question is brought sharply into issue by the special defenses, and was the center around which much evidence, both oral and documentary, was introduced. Upon the evidence the court found that the policy was in force at the time of the accident, that it had not been previously canceled by appellant and that it had not been annulled and rendered void by reason of the assured taking out a policy of insurance with another company prior to the accident

The probative facts, established without apparent dispute, upon which the court made its findings of these ultimate facts are substantially as follows: B. K. Elgin, residing in Indianapolis, Indiana, from July 1, 1931, to June, 1932, was the agent in California’ of appellant company, a foreign corporation, and was licensed as such under the provisions of section 633 of the Political Code as it then existed. He had one George O’Hara of San Francisco acting in California as his subagent, who, on September 8, 1931, executed as agent of appellant the policy here in question, bearing number 80070, and the same was filed with the board of public utilities of the city of Los Angeles on September 18, 1931, in accordance with provisions of an ordinance regulating passenger carrying vehicles. The issuance of this policy being reported by O’Hara to Elgin at Indianapolis, the latter wired to the board on September 28th that the policy was issued without permission of the company or of Elgin, and that such issuance was not acceptable. On September 29th, by direction of the secretary of the company, Elgin sent a telegram to the board, signing the company’s name thereon, stating: “Please cancel Mercer policy 80070, issued September eighteenth favor Red Top Cab Company Los Angeles cancellation effective as of noon October thirtieth cancelled account of hazardous risk and on prohibitive list of this company confirmation by air mail.” This telegram was followed by air mail letter of September 29th copying and confirming the telegram.

On October 30th, while in Los Angeles, Elgin delivered a letter to the board in which he stated in reference to the cancellation of the Mercer policy: “I readily understand that you are right in the premises in not accepting a wire cancellation and agree that you have a right to insist upon a confirmation of such wire by letter, which I failed to give you. This letter, however, will serve as a cancellation notice of said policy effective thirty days from date. However, I am insuring the Red Top Cab Company in the Prudential Casualty and Surety Company of St. Louis, Missouri, effective as of November 1st and I trust you will permit me to take up the Mercer policy as soon as the Prudential policy is approved by your Board.” This letter

On November 30th Elgin sent the following letter to the board of public utilities: “This will be your authority to extend the present Mercer Casualty Co. policy and/or Binder until January 1, 1932, for John P. Coyle, Receiver for General Cab Co. DBA Red Top Cab Company. In the meantime I anticipate having the Prudential Casualty & Surety Company approved and will file their policy, thereby relieving the Mercer Casualty Co. from any liability whatsoever in connection with this risk.” It was signed “Mercer Casualty Company by B. K. Elgin, Representative”. On December 6th the accident herein occurred. On December 10th appellant, from its office in Celina, Ohio, wired to the board requesting advice as to the effective date of termination of its policy No. 80070, to which the board replied on December 11th that the policy had been extended to January 1, 1932, by B. K. Elgin. On December 14th the Prudential Casualty & Surety Company filed with the board its application to write insurance under the ordinance, and on December 29th a license so to do was granted, and on December 30th policy number A U 38959 of such company was countersigned by B. K. Elgin as agent, covering the same risks of the same assured, and was filed with the board.

The policy issued by appellant contained provisions allowing cancellation thereof by the company upon five days’ previous notice in writing to the assured, if cancellation is sought on the ground of failure to pay premiums or for

On March 31, 1931, appellant company made application to the board of public utilities of Los Angeles to write all claims of insurance within the jurisdiction of that board. On the same date it applied to the insurance commissioner of California to approve and license the appointment of B. K. Elgin as its agent in California under the provisions of section 633 of the Political Code as it then existed. On July 1, 1931, a license was issued to B. K. Elgin by the insurance commissioner reciting that Elgin had complied with the provisions of section 633 of the Political Code. That section required as a condition precedent to the issuance of a license to an insurance agent or solicitor that he present a duplicate power of attorney from the company authorizing him to act as such agent or solicitor. Under this appointment Elgin proceeded to act as such agent from his home office in

From all this and other evidence in the ease it is made to clearly appear that Elgin was the general agent of appellant company for California, authorized to do anything in respect to the soliciting, writing, extending or canceling of liability policies which the company itself might do. (Bank of Anderson v. Home Ins. Co., 14 Cal. App. 208 [ 111 Pac. 507 ].)

The powers of an agent for an insurance company are, as a general rule, governed by the general law of agency. His powers are varied by the character of the functions he is employed to perform. He may be a general agent with general powers, or his powers may be limited by the company. He possesses such powers as have been conferred by the company or as third persons have a right to assume he possesses under the circumstances of the case; and as a general rule his powers, as to those dealing with him, are determined by the nature of the business entrusted to him and are prima facie coextensive with its requirements. (Frasch v. London & Lancashire F. Ins. Co., supra.) Ordinarily a general agent is one who has all the powers of his principal as to the business in which he is engaged, except as limited by the company to whatever it deems

Measured by these rules, applied to the probative facts above stated, we are satisfied that the court did not err in finding the ultimate fact of noncaneellation as of a date prior to the accident herein. Elgin, as general agent, gave to the board a notice of cancellation on September 29, 1931, gave another written notice of cancellation to the board on October 30, 1931, but gave no written notice of cancellation at any time to the assured. On November 30, 1931, he gave to the board a written notice of extension of appellant’s policy to January 1, 1932, and informed the assured that such policy would remain on record until the Prudential policy was approved by the board. In so far as concerns the board of public utilities and Coyle, the assured, and plaintiff herein, who was one of the potential beneficiaries under the policy and for whose benefit and protection it was required, approved and accepted, these acts of the general agent, Elgin, were the acts of the company and binding on it. Thereon the trial court correctly found that the policy issued by appellant had not been canceled prior to the date of the accident herein.

This leaves for solution the problem presented by the evidence relating to the issuance and use of the Prudential policy. The policy issued by appellant contained a provision to the effect that, with permission indorsed thereon, the assured may carry other insurance against loss or damage covered by such policy, in which case such loss should be prorated among the policies. Appellant in its answer alleged that the Prudential policy was issued to the assured without permission of appellant, and thereby rendered the

It is patent that the claim asserted by appellant in its special defense, that issuance and acceptance of another policy on the same risk would render appellant’s policy null and void, is not well founded. The terms and language of the policy do not support such defense. However, on this appeal the appellant has transmuted the claim thus presented by its answer into a claim that the issuance to and acceptance by the assured of the Prudential policy operated as a matter of law to release appellant from the obligations on its policy, under the general rule announced in some eases to the effect that an insurance policy is in effect canceled when another policy is substituted for it. This rule cannot of course operate without the necessary facts showing a substitution. The court below, on a conflict of evidence, found that no policy of the Prudential Company was issued to or received by the assured prior to the date of the accident herein. There is ample and substantial support for such finding in the evidence. This court may not go behind that finding, nor substitute another of its own. Furthermore, we are not unmindful of the fact that the Prudential Company had no license to furnish public liability insurance in Los Angeles until December 29, 1931, and that no policy of that company was actually substituted for the Mercer policy in the records of the board of public utilities until this last-mentioned date. In the meantime respondent had suffered her injuries at the hands of the assured on December 6, 1931, at a time when the Mercer policy was still on file in the office of the board of public utilities, standing as the sole authority for the continued existence of the license of the assured to operate his taxicabs in Los Angeles. The ordinance of the city of Los Angeles in evidence herein required the owner of the taxicabs which he sought to operate in the city as passenger carrying vehicles to file with the board of public utilities and keep in effect a policy of insurance, insuring the public against loss or damage that may result from the operation of such vehicles, or in lieu thereof a bond of certain character and

The appeal from the order denying a motion for new trial is dismissed. The judgment is affirmed.

Stephens, P. J., and Crail, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on May 16, 1935, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 13, 1935.