Washington Fire & Marine Ins. v. Chesebro

35 F. 477

• Court: U.S. Circuit Court for the District of Connecticut
• Decided: September 15, 1887
• Status: Published

Opinion

Shipman, J.,

(charging jury.) 1. It being admitted that the defendant was agent for the plaintiff, it was the duty of the defendant, upon receipt of the notice, dated July 31, 1885, peremptorily ordering him to cancel the risk, to proceed to do so with all reasonable diligence.

2. It being admitted that the office of the agent was within five minutes’ walk of the office and place of business of E. T. Whitmore & Co., the insured, the agent’s neglect to cancel said policy for a period of more than six days after the receipt of said peremptory order was such a neglect of duty as would render the defendant liable to the plaintiff for the loss incurred by the.plaintiff in consequence thereof.

3. That the delay after the receipt of the notice dated July 31st, is not excused by the fact—if it should be found—that the agent believed that the company were mistaken as to the safetyor danger of the risk, or as to the wisdom of retaining the risk.

4. That if the agent delayed complying with the peremptory orders of the company to cancel the risk, and did so delay from a mistaken view of the safety of the risk and the wisdom of canceling it, or in the hope of persuading the plaintiff to continue the risk, the delay in the mean time was at his own peril and at his own risk if a fire should occur.

5. If the second order to cancel, dated the 7th day of August, 1885, was received by the agent in such season that he had one or two days before the day of the fire in which to cancel the risk, and he made no attempt so to do, such neglect on the part of the defendant was a breach •of his duty, and would render him liable for the damages which the company suffered in consequence thereof.

The court further charged, adopting the language in the case of Courcier v. Ritter, 4 Wash. C. C. 551, as to instructions to an agent:

“If the order leaves him a discretion, the law' requires of him nothing further than the exercise of a sound, honest judgment. But if the order be free from ■ambiguity, is positive and unqualified, it m ust be rigidly obeyed, if it be practicable; and no motive connected with the interest of the principal, however honestly entertained, or however wisely adopted, can excuse a breach of it.”