Renault Frères Selling Branch, Inc. v. Sewall & Alden

Laughlin, J.:

The defendant is a domestic corporation incorporated on the 24th day of April, 1905, and it is authorized by its certificate of incorporation, to carry on a general insurance agency and brokerage business and to act as principal, agent, broker or attorney in buying, selling and dealing in and managing property, both real and personal, and in making or obtaining loans thereon, and in buying, selling and dealing in bonds, stocks and other securities, and to transact all other business necessary or incidental or proper to the exercise of any or all of those purposes; but it appears to have conducted only an insurance agency. It has been held liable upon the theory that it employed the plaintiff to repair an automobile which was owned by one Hamilton and was damaged by an accident. The plaintiff is a domestic corporation engaged in importing *25and selling automobiles, and it also maintains an automobile repair shop and garage. The defendant was not authorized to carry on the insurance business; and it is perfectly evident that the plaintiff knew that it had not insured Hamilton’s automobile against accidents. The plaintiff sold the automobile to Hamilton, and thereafter, late, hi May, 1909, he met with the accident and the car was brought to its repair shop. Hamilton had procured from the General Accident, Fire and Life Assurance Corporation, Limited, of Perth, Scotland, through Sewall & Alden, a policy of insurance insuring him against accidents to the automobile. ' That insurance company was represented in this State by Henry F. Sewall and Percy S. Alden, who conducted business under the firm name of Sewall & Alden before the incorporation of the defendant, and who continued to conduct certain business as a firm after the incorporation and procured this policy and the defendant corporation had had nothing to do with procuring this insurance and had no interest therein or relations with the insurance company. The theory of the defendant is that Sewall and Alden, individually, representing the insurance company, acted with one Grassmuck, an adjuster for the insurance, company, in settling the loss caused by the accident to Hamilton’s car, and that negotiations. were had between Grassmuck, the firm of Sewall & Alden, the plaintiff and Hamilton before the repairs were made only with a view to agreeing upon the amount which the insurance company would allow Hamilton on account of the loss. The contention of the plaintiff is that the defendant corporation employed and expressly agreed to pay the plaintiff for making the repairs according to an estimate which the plaintiff made and which the defendant accepted in advance, which, however, was to be subject to revision and to reduction by a trade discount. The principal question litigated upon the trial and submitted to the jury was whether the defendant corporation did employ the plaintiff to make the repairs. The finding of the jury on that question in the affirmative is clearly against the weight of the evidence. The plaintiff had had many prior business transactions with the defendant, and in all of those transactions the defendant acted as an insurance broker and never undertook *26to underwrite a policy. The evidence tends to show that the defendant procured many policies of insurance for the plaintiff, on some of which losses had occurred, which were adjusted through the defendant and paid by the insurance companies. Before the repairs in question were made the plaintiff made out an estimate in writing and addressed to Hamilton of the repairs required and the amount it would charge therefor. There is a conflict in the evidence as to whether or not this estimate was delivered to Hamilton, but it appears that it or a duplicate thereof was sent to defendant. The evidence also shows that Grassmuck was not in the employ of the defendant and had no authority to represent it. The plaintiff’s case has been presented upon the theory that Grassmuck represented the defendant. ■ It was not shown that the defendant, or Sewall and Alden individually, or as a firm, took any part in the negotiations for or in the making of the contract under which the action was brought, other than the fact that Hamilton telephoned to the office of Sewall & Alden, at which both corporation and firm business was transacted and where Grassmuck also officed, that he had met with an accident. The message was received by Grassmuck, and, as was his duty as an investigator and adjuster for the insurance company, he went to the plaintiff’s repair shop and investigated the accident and opened negotiations with respect to adjusting the loss. These negotiations were with Hamilton and the plaintiff’s factory superintendent,. and, according to the testimony of Grassmuck, the purpose thereof was not to make a contract between the defendant or the firm of Sewall & Alden, or even the insurance company and the plaintiff, but to arrive at an understanding between the insurance • company and Hamilton with respect to the amount the company would. allow him for ■ the loss before it consented to his having the automobile repaired by. the plaintiff and before he incurred any expense. The policy of insurance was not introduced in evidence, but it is fairly to be inferred from the evidence that the insurance company reserved the right to take charge of the automobile and make or ha>e the repairs made, or some right of control in that regard, and that this was understood by the plaintiff as well as by Hamilton and Grassmuck and necessitated the negotiations with *27respect to the amount to be allowed for the repairs before Hamilton could have them made by the plaintiff. After Grassmuck in behalf of the insurance company agreed to adjust the loss at $1,750, it appears by his testimony, which on this point is not specifically controverted, that at the request of the plaintiff’s factory superintendent Hamilton signed an acceptance of an estimate made by the plaintiff to repair the automobile, and he was thereupon requested to sign an acceptance also, and that after some discussion he and the superintendent dictated a letter addressed to plaintiff to which Grassmuck signed the name ‘' Sewall & Alden.” Grassmuck further testified that on other occasions in adjusting losses he had signed the name “ Sewall & Alden, Managers,” and that he intended so to sign in this case, and according to his recollection so dictated the letter, but that he signed it hastily and without examining it carefully and the word “ Managers ” was omitted. The repairs were charged to Hamilton on the books of the plaintiff and the bill therefor was made out to him. According to the evidence adduced on the part of the plaintiff, however, the bill was delivered to the defendant only, but the evidence on the part of the defendant is in effect that the bill was delivered to Hamilton. On the 15th day of October, 1909, a letter was written to the plaintiff’s manager signed “Sewall & Alden,” in reply to a' letter from him asking for an adjustment of the bill, saying, among other things, “we settled with Mr. Hamilton, handing him our draft for $1,750, on October 6th and understood that he was to indorse the draft over to you immediately,” and stating the basis of the settlement, which, it was therein asserted, had been arrived at “between yourself, Mr. Ward from our Head Office and Mr. Sewall.” The bill rendered was for $2,735.47, and thereafter there were negotiations between plaintiff’s manager, Mr. Ward, who was the head of the automobile insurance department of the General Accident, Fire and Life Assurance Corporation in Philadelphia, and Mr. Sewall, and an agreement was reached by which the cost of the repairs for which the insurance company was liable was fixed at $1,750 and thereupon a draft for that amount was sent to Hamilton. It does not appear that the plaintiff prior to the making of these repairs, was aware *28of the fact that Sewall & Alden constituted a firm, and were engaged in the same business as the defendant. There is evidence from which it may be inferred that through prior business transactions of a somewhat similar nature the plaintiff was led to believe that Grassmuck was authorized to represent Sewall & Alden; but in all such matters the only legitimate inference to be drawn from the evidence is that the plaintiff knew that such negotiations and adjustments were conducted by Sewall & Alden only as agents for the insurance companies.

It may be that the evidence presented a question' of fact for the determination of the jury as to whether the plaintiff was not justified in assuming that Grassmuck was authorized to represent the defendant as agent of the insurance company in the negotiations which-resulted in the contract under which the repairs were made; but I am of opinion that there was not sufficient evidence to take the case to the jury upon the theory that the plaintiff was' led to believe that the defendant conducted the negotiations or made the contract, through Grass-muck or otherwise, in its own behalf or for itself; but if the evidence on that point presented a question of fact the determination of the jury thereon is against the weight and preponderance of the-evidence, which clearly shows that if the defendant participated in the negotiations or in the making of the contract it was well known to the plaintiff that it was merely acting as agent for its principal the insurance company, and that it did not on its own responsibility employ the plaintiff to make the repairs or agree to pay therefor.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., and Scott J., concurred; McLaughlin and Clarke, JJ., dissented.