Reynolds v. Continental Insurance

36 Mich. 131, 1877 Mich. LEXIS 93

• Court: Michigan Supreme Court
• Decided: April 4, 1877
• Status: Published

Opinion

Graves, J:

A verdict having been returned by direction of the court against Reynolds, who was plaintiff below, he has brought error.

The action was on an alleged agreement of July 18th, 1874, to insure his interest up to three thousand dollars for one year in a steam mill and its appliances, at. Manchester, in Washtenaw county, the property having been destroyed "by fire August 3d, 1874, and no policy having been received by him.

He claimed the agreement was made on the part of the company by one Kirchhofer, then its agent at Manchester, and that he paid one hundred and thirty-five dollars as premium.

' The insurance company maintained that, conceding Kirchhofer to have been its agent to take common risks, he had no power to take any of the class of plaintiff’s, and that if he assumed to • agree as alleged, his act was unauthorized, and hence was not a ground of action against it.

Excluding a point now made on the rejection of an offer by Reynolds at the close of the trial, relative to proof, and which will be noticed at the proper time, the record of the trial shows that in the first place Reynolds insisted upon giving evidence of a bargain for the special risk in question, with Kirchhofer, ánd without any evidence of power in Kirchhofer to make such a bargain; and as ground for maintaining that he was fully justified in regarding Kirchhofer as authorized to bargain for the risk in question, he insisted secondly that he was entitled to prove that there was a practice at other agencies to take such risks; that Kirchhofer was entrusted with policies in blank, signed by the president, and actually solicited the risk and received the premium. These facts, it was claimed, entitled Reynolds to ' transact with Kirchhofer upon the faith that the latter had power to bind the company by the bargain for the risk in question, notwithstanding the fact, unknown to Reynolds, that the commission and policies debarred Kirchhofer.

The company resisted these claims and contended that before adducing .evidence of a bargain with Kirchhofer it was incumbent on Reynolds to prove that Kirchhofer was empowered, and that the practice at other agencies as to the kinds of risks agents assumed power to take, and the other facts proposed in connection, were without force to sustain the theory on which they were suggested, or to hold the company on the supposed bargain, and hence were inadmissible. This outline will give an idea of the attitude of the parties at the trial.

The court was very indulgent to the plaintiff and allowed great latitude in his various efforts and expedients to get over inherent difficulties. When the trial opened, the plaintiff took the witness stand and having sworn that at and before July 18th, 1874, Kirchhofer acted as insurance agent at Manchester, was then asked by his counsel for what com.panies he was acting. The question was ruled out and error • is assigned upon the ruling. The true object of the question must have been to draw an answer that Kirchhofer was acting for the defendant corporation, and yet it had not been shown that the plaintiff had any other means of knowledge than the very transaction which was in dispute, and surely if Kirchhofer assumed the power the existence of which was the point in issue, his act could not be made use of by the plaintiff as- evidence that the power so assumed actually existed.

Immediately after this rejection, plaintiff’s counsel put this question: “ State whether any agreement or bargain was: made for the insurance of your- mill property and the fixtures, machinery, etc., contained therein, in behalf of defendant?” and plaintiff at once replied: “Yes, sir,' he insured me.”

The counsel for defendant then objected that the question did not ask for any bargain with him as agent for the company; that if it did it would be inadmissible until the agency, the authority to make the bargain and agreement, had been proved, and following this objection defendant’s counsel produced the commission given by the company to. Kirchhofer, and the plaintiff submitted it in evidence. It. bore date June 23, 1874, and defendant’s counsel admitted that Kirchhofer received it before July 18, 1874. It expressly excepted from his authority the power to grant policies upon “manufactories and other special hazards,” and for the classification of hazards referred to the provisions of the policies of the company. The fact of Kirchhofer’s agency was therefore shown at the outset, and there is no plausible ground whatever for the first charge of error. Indeed, the real controversy concerning Kirehhofer’s authority was •not upon the fact of his being an agent, but upon the extent of his power as agent. That he was actually an agent was not denied.

The next charge of error is founded on the exclusion of a question to the witness Millen.

He was local agent at Ann Arbor for several companies, and had been for many years. '

His practice was to take risks on all classes of property. He was aware that his companies gave greater authority to some agents than to others, but he had no knowledge of the course pursued at other agencies. His ability to speak of the practice in this respect was confined to his own agency.

The excluded question required him to state, so far as he knew, what the usual custom was in the county as to .agents taking risks on all kinds of property.

As he had already stated distinctly what his own practice was and that he knew nothing of the practice at other agencies, and that the- same companies did not give as .extensive powers to some agents as to others, the inquiry could only elicit in effect, and most likely in a form calculated to mislead the jury, a repetition of what was the practice at his own agency alone. Again, waiving all questions touching the right to prove that there existed in Manchester a practice to take all risks, and still the practice at that place could not be inferred from the fact of there being such a practice at Milieu’s agency.—1 Starkie Ev., 618, 619 (mar.), and notes.

The precise theory which the plaintiff’s counsel had in mind at this point is not readily discerned. Surely he could not have meant to claim that usurpation of power by agents of one concern, and followed by acquiescence of the principal, could be urged as a reason for holding another concern bound for its agent’s unauthorized act, and which was not acquiesced in, but repudiated.

As to whether there was any showing whatever of power in Kirehhofer to make the alleged bargain, the case appears clear.

The plaintiff submitted the commission, and that withheld authority in express terms to take his risk.

It was also shown by plaintiff that the company furnished Kirehhofer with blank policies signed by its president. But' such of these as there was evidence to explain excluded such risks. There was no evidence that different ones were ever confided to Kirehhofer, or in fact that the company used any others. No facts were adduced tending to show a grant of greater power than the commission gave. Again, there was no evidence of any act of the insurance company tending to show the creation of any apparent power to exceed the commission and insure such property as plaintiff’s. There was not a scintilla of proof that Kirehhofer was held out by the company as authorized to do any thing beyond the terms of the written delegation, or that the company had in any instance acquiesced in an act of his in excess. Indeed, it did not appear that in any instance he had previously assumed to insure property excluded by his commission, and certainly it will not be pretended that his own proceedings, the authority of which was the fact in issue, could be brought forward to sustain that side of the issue which asserted the authority. The single circumstance that he was the company’s local insurance agent at Manchester, ivas not tantamount to a declaration of the company that he had power to insure every kind of property and to exercise unlimited authority as to risks, modes and terms. By itself it could imply nothing more than authority to insure in the mode allowed by the company’s charter, and to take such risks as the policies of the company in common use by its agents would warrant, and we have seen that so far as there was evidence the plaintiff’s risk was not within the purview of the policies in use.

There- was no evidence of the power conferred by the charter.—Security Insurance Co. v. Fay, 22 Mich., 467; Meister v. The People, 31 Mich., 99; Mussey v. Beecher, 3 Cush., 511; Markey v. Mutual Benefit Life Ins. Co., 103 Mass., 78; Turner v. Quincy Mutual Fire Ins. Co., 109 Mass., 568; Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 3 Ker., 632; Adraince v. Roome, 52 Barb., 399; Risley v. Ind., B. & W. R. R. Co., 1 Hun, 202; De Grove v. Metropolitan Ins. Co., 61 N. Y., 594; Bush v. Westchester Fire Ins. Co., 63 N. Y., 531; Swazey v. Union Manufacturing Co. (Sup. Ct. of Conn., Sept., 1875); Kornemann v. Monaghan, 24 Mich., 36; Farmers’ Ins. Co. v. Taylor, 73 Penn. St., 342.

Hitherto the case has been considered without reference to the point made upon the exclusion of the plaintiff’s final offer of proof.

It remains to examine that point. Does-it affirmatively appear from the bill of exceptions that the judge erred in refusing the offer? Unless it does the charge of error- is not sustained.

In submitting propositions' of proof it is requisite that counsel should be distinct and clear. A proposition should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one.—Clay Fire & Marine Ins. Co. v. Huron Salt, etc., Co., 31 Mich., 346, 356.

■The object is to economize time by getting an admission of the facts or a ruling on their admissibility without the tedious process of examination, and the facts proposed ought to be indicated with sufficient clearness in regard to identity and sense to enable the court and adverse counsel to judge intelligently concerning their admissibility.

Common fairness, as well as the nature of the proceeding, demand this.

If the judge is compelled to rule upon the offer he may possibly go beyond its obvious import and concede an intent not fairly indicated. This, however, is not to be intended. It must be clearly shown. He must be supposed to have passed upon the statement in view of what it actually seemed, and in case of exclusion, his decision, if correct when applied to the proposition as it appeared, cannot be questioned in an appellate court upon the claim of the party who made the offer, that the proposition covered some meaning which required a different ruling.

The ruling must be presumed to have been made on the proposition as it appeared, and not on it as it did not appear.

In Daniels v. Patterson the court had occasion to consider a question somewhat similar to the present, and Judge Bronson, who gave the opinion, observed: “We all know that offers of evidence are usually made in as broad and strong terms as the facts will warrant. Before a party excepts on account of the rejection of evidence he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fail to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appears that it was so understood by the court which rejected the evidence, and if the meaning of the offer depends upon argument arid inference, he must have much the best of the argument before a court of review should reverse the judgment.”—3 Comst., 47. See also Elwell v. Dodge, 33 Barb., 336; First Baptist Church v. Brooklyn Fire Ins., 23 How. P. R., 448; Johnson v. Carnley, 6 Seld., 570, 575, 576; Pepin v. Lachenmeyer, 45 N. Y., 27; Harger v. Edmunds, 4 Barb., 256; Van Buren v. Wells, 19 Wend., 203; Hosley v. Black, 28 N. Y., 438; Wheeler v. Rice, 8 Cush,, 205; Weidler v. Farmers’ Bank of Lancaster, 11 Sergt. & R., 134; Wright v. DeGroff, 14 Mich., 164; Gilbert v. Kennedy, 22 Mich., 117; Albright v. Cobb, 30 Mich., 355.

In the light of these considerations we may proceed to notice the terms of the plaintiff’s proposition and in connection with the course of proceeding. After repeated rulings, which were well warranted, that the alleged bargain with Kirchhofer could not be shown, for the reason that no evidence had been adduced of his power to bargain for plaintiff’s risk, the plaintiff took the stand for the third time, and swore that there were other insurances and that the whole amount of premium for all was twelve hundred and fifty dollars; that he paid Kirchhofer for this insurance one hundred and thirty-five dollars, and that the money had not been returned; that he did not know to which of the companies Kirchhofer applied it, and that he might have applied it to this company and might have applied it to some other. Plaintiff’s counsel then said: ‘‘We now offer to prove by the witness the other facts alleged in the declaration, not proposing to offer any other evidence on the subject of agency, but the other facts to entitle us to recover three thousand dollars, with interest from the fourth day of August, 1874, the day of the fire; that they received the money for this loss and kept it.” The’judge then observed: “It is not necessary to take up time. I think the ruliug before made should govern, if that is all the evidence.” Plaintiff’s counsel replied: “That is all on the subject of agency.” “It is conceded that the other proof is made.” The judge responded: “It has been offered once before, and I think it may bo governed by the ruling before made.” And counsel rejoined: “We offer to prove the other facts to entitle us to recover.” Whereupon the judge answered: “It is objected to and the objection is sustained.” Plaintiff’s counsel thereupon excepted.

The charge of error is, that the court refused to allow the plaintiff to prove that the insurance company received this money for this loss and kept it, and hence ratified the bargain alleged to have been made with Kirchhofer. It ■will be noticed, in passing, that although the judge clearly indicated how his mind was directed by the general and ambiguous statements of plaintiff’s counsel, and that he ■regarded them as only amounting to reassertion of claims and theories ruled previously, and not to an offer to adduce facts to make out a case in some other way or on some ■other theory, still the plaintiff acquiesced in the judge’s construction and made no attempt to correct his impression if not right. The charge of error supposes the offer to have meant something else, and that the judge mistook in his understanding of it. There is high authority for saying that the plaintiff cannot question the correctness of the judge’s construction, for the reason that it was virtually assented to at the trial.—Morrish v. Murrey, 13 Mees. & Wels., 52; Boeklen v. Hardenbergh, 60 N. Y., 8. But the point need not be disposed of on this principle.

An examination of the course taken at the trial and of the proposition make it very apparent in the first place that the judge did not understand the offer in the sense now sought to be imposed on it by the plaintiff, and in the second place that there is no solid ground for considering that it was fairly open to any such meaning.

The main part of it was a proposal in so many words to make out the case set forth.

The declaration had already made this proffer, and in better form. An offer of particulars was required upon ■which some judgment could be formed.

No hint was given of any ratification, and all further proof relating to agency was disclaimed.

Again, the whole of the evidence suggested was to be made by the plaintiff himself. This was expressly stated. Nothing was proposed from any other source. The offer was distinctly confined to testimony by the plaintiff. And yet, he had just sworn that he knew nothing as to whether the insurance company had or had not received -the money paid to Kirehhofer. Indeed, the offer did not propose in terms to prove that the company had received the money. As worded, the proposition was not distinctly unequivocal. It was capable of being so construed as to be consistent with the fact the plaintiff had sworn to, that the agent, Kirchhofer, had received it; but it could not be-very well reconciled with the notion that the plaintiff would swear that the company had received it. Certainly the court could not be expected to understand from the language that plaintiff’s counsel proposed to show by the plaintiff, in plain contradiction to what he had distinctly sworn to only a moment previous, that as matter of fact the corporation actually received the money. There was no intimation that the plaintiff had testified under a mistake or that any error had been committed. Considered as an offer of proof, the statement was insufficient, blind and indefinite, and in view of. all the circumstances, it would have been remarkable if the judge had accepted it as having the sense and drift now imputed to it on the part of the plaintiff.

As represented in the record, and as it must have looked at the1 trial, it was natural for the judge to view it rather as a compendious reassertion of positions already ruled, than as a regular offer of proof of facts to make out a case, and there is some reason for thinking that the construction now claimed by the plaintiff for the proceeding was not thought of at the trial at all.

This charge of error must be overruled.

Finally, it is considered clear that no case for the jury was made, and that the judge did not err in directing a verdict for defendant. Had the plaintiff purposed to sue in equity to enforce performance of the alleged agreement, his-want of material facts to enable him to set forth a prima facie provable agreement against the company on the basis, either of an original authority in Kirchhofer, a subsequent-ratification, or matter of estoppel, would have been very-conspicuous to him.

The judgment should be affirmed, with costs.

The other Justices concurred.