Remmel v. Witherington

88 S.W. 967, 76 Ark. 373, 1905 Ark. LEXIS 70

• Court: Supreme Court of Arkansas
• Decided: July 22, 1905
• Status: Published

Opinion

McCurroch, J.

The testimony was conflicting on the issue as to the alleged fraud on the part of Ward in writing the application for a policy of $10,000 and the note for the premium on that amount, instead of $2,000; but the jury found, upon instructions to which there was no objection, in favor of appellee, and we must treat that issue as settled. The testimony is sufficient to have sustained a verdict either way on that issue.

Appellant asked an instruction, which the court refused, telling the jury that “if the defendant requested the. witness Ward to sign his name to note sued on, he became the agent of defendant in signing the note; and if he did* not follow defendant’s instructions, then the plaintiff, if he took the note before maturity and for a valuable consideration, is not responsible for the act of the agent.” The refusal of the court to give the instruction is now urged as grounds for reversal. The proof did not warrant the giving of this instruction. Ward was acting under authority from and control of appellant. It is shown that the company does not accept notes for premiums, but that the taking of notes by a special agent is done for the general agent, and that in so-doing he acts for his superior, the general agent.

Ward testified on that point as follows:

.“Q; Does Mr. Remmel take up all those notes taken by special agents?

“A. Yes, sir; we are not allowed to handle any paper whatever.

“Q. Then, while this note is taken in your name, it is really for Mr. Remmel?

“A. Yes, sir, and indorsed right over to him.

“Q. You did that because you were authorized by him to do so and turn it in to the general agent?

“A. Yes, sir.”

This shows that Ward in taking the .note was the agent of appellant, who is responsible for his acts in regard thereto. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; Insurance Company v. Brodie, 52 Ark. 11.

We do not mean to say that a person may not act as the agent of both parties to a transaction for some purposes, where there is no conflict of interest; but that rulé cannot be applied to the facts here, where Ward was the agent of appellant in taking the note.

We find no error, and the judgment is affirmed.