National Fire Insurance v. Sullard

In or about the month of August, 1900, Albert K. Shipman was appointed the local agent of the plaintiff, the National Fire Insurance Company, at Yonkers, N. Y., and from that time until July, 1903, was engaged in the business of -writing policies of fire insurance in that city for persons whom he solicited, or who solicited him in that behalf. During that time he was also the agent of other fire insurance companies. At the time of his appointment by the plaintiff he received from it certain written “instructions to agents,” in which notice was given him that he would be required to enter the exact copy of the written portion of every policy in the “policy register,” together with the indorsements upon such policies, rates of premium, and other matters in connection with the business. He was also instructed that all business done for the plaintiff must be reported to the home office of the company at Hartford on the day of the transaction, and that reports of policies, assignments, transfers, and the like should be placed upon the blanks furnished by the plaintiff for that purpose. These blanks are known as “daily report blanks.” Although supplied with the policy register, Shipman did not undertake to use it. Soon after his appointment he was visited by the special agent of the plaintiff, and by him given permission to keep a duplicate of the daily reports sent in to the head office upon the daily report blanks, in the place and stead of the policy register. It appears that the details of the policies written were set forth more at large upon the daily report blanks than would have been the case in the policy register. These duplicate daily reports he kept in permanent form in a “daily report case,” and they appear to have served the purpose of a policy register completely. When Shipman went into the business of writing fire insurance he acquired this business from the defendant, who had been a fire insurance agent in the same office prior to the month of August, 1900, and from him Shipman got, in connection with the papers and the business transferred to him, a blank book known as an “expiration register.” This book had been supplied to the defendant some time prior to the year 1900 by a fire insurance company other than the plaintiff. It contained 250 pages, ruled in columns for convenience of entering therein all particulars of policies of fire insurance, had separate and

Prior to the trial, and again upon the trial itself, the defendant offered to return to the plaintiff the copies of the daily reports which had come to him through Shipman, and all memoranda or copies he had taken therefrom. The plaintiff declined to settle the action in that way, claiming its right to the possession of the expiration register and to an injunction restraining the defendant from using any of the information derived exclusively from those papers and books, and upon this appeal we do not understand that the plaintiff seriously contends that the defendant is not the legal owner and entitled to the possession of the copies of the daily reports which Shipman made during his agency, pursuant to the instructions received from him by his principal, upon the blanks furnished by it. Our opinion is that the plaintiff was not the owner of the expiration register, nor entitled to its possession, and hence not entitled to enjoin the defendant from the use in any lawful manner of the information derived from the expiration register. As to the balance of the books, papers, and memoranda, including the copies of the daily reports, the plaintiff is their owner, and this seems to be conceded; and the plaintiff is entitled to its injunction against the defendant restraining him from using the information he obtains exclusively from them in soliciting business from policy holders in the plaintiff company. So far as the judgment appealed from treats of the. expiration register, however, it is wrong, and must be modified by eliminating its directions in respect to that book.

The uncontradicted evidence tends to show, and the custom is so universal that the court may take judicial notice (Hutchinson v. Manhattan Co., 150 N. Y. 250 , 256, 44 N. E. 775 ; Merchants’ Nat. Bank of Whitehall v. Hall, 83 N. Y. 338 , 344, 38 Am. Rep. 434 ; Agawam Bank v. Strever, 18 N. Y. 512 ; Bookman v. N. Y. E. R. R. Co., 137 N. Y. 305 , 33 N. E. 333 ; Frace v. N. Y., L. E. & W. R. R. Co., 143 N. Y. 182 , 38 N. E. 102 ; Anderson v. Blood, 86 Hun, 244 , 246, 247, 33 N. Y. Supp. 233 ), that the business of a fire insurance agent, at least in the smaller cities and towns, is to represent contemporaneously several insurance companies, and consists in soliciting persons to permit them to place insurance for them, or in being solicited by those desirous of being insured for the same purpose. Only in rare cases do those who seek insurance express preference for any one fire insurance company over another, or request that their insurance be placed with any particular company. The proof in this case tends to show that for the years Shipman was the agent of the plaintiff and other companies he was rarely, if ever, requested to place insurance with any particular company, and exercised his own judgment in determining with which of the insurance companies he represented he would place the insurance. The custom is too well established, and the record in this case contains

The only fair inference in this case is that the expiration book was originally manufactured for the- purpose of enabling fire insurance agents, for their own purposes, and not for the benefit of the insurance companies they represent, to keep track of their customers and the business of those customers with themselves. It was given to this defendant before he sold out to Shipman six or more years ago, and contained a ruled column appropriate for inserting the name of the insurance company with which the several policies of insurance were placed. This very circumstance seems to me to negative an intent upon the part of the insurance company which presented him with the book, and an intent on the part of either the defendant or Shipman, that the register was to be kept for any other purpose than as the personal legitimate memorandum of the agent. The plaintiff’s special agent Stone seems to have treated the book in the same light, for, although he knew of its existence, and had seen it in Shipman’s possession while making his regular calls upon him, did not include it in his demand for papers from the defendant upon refusing the defendant’s offer to represent his company. His evidence clearly indicates that when visiting Ship-man-in his regular calls he attached no importance to the expiration register as a writing, memorandum, or book of the plaintiff, or in any respect to plaintiff’s business, to which the plaintiff was not entitled honestly and without violation of his confidential relations and the loyalty an agent is said to owe his principal.

It must go. without saying that a grocery clerk may not lawfully surreptitiously copy the names of his employer’s customers from the latter’s books of account for use in soliciting away the employer’s customers after the clerk shall have left the employ; but nothing is to prevent legal title of such copies passing to the clerk, provided the employer expressly permits the copies to be made, or tacitly allows it, seeing it while it is being done, and knowing the purpose which it is meant to serve. The point that the respondent makes that Shipman kept this expiration register pursuant to instructions received from the plaintiff is not well taken, for the reason that the instruction was to keep such a “report” to which attention had been called. This was the only record of plaintiff’s Shipman was required to keep. While he did not keep the record, with the permission of the plaintiff’s agent he kept copies of the daily reports, and this- fulfilled the purpose of the record, and the inference is that it accomplished the purpose even better than the record would have done. In preserving these copies of daily reports Shipman discharged his duty in that respect to the plaintiff.

It cannot be said from any facts proved in the record, and from the

The judgment should be-modified in accordance with these views, and, as modified, affirmed. All concur; BARTLETT, J., in result.