Upon the evidence a jury might have found that the plaintiff suffered an injury by reason of the negligence of one Burns in the operation of his automobile; that Burns had an accident policy with the defendant company by which it was liable to reimburse him for all sums collected from him on such account not to exceed $5,000; it was to defend all actions brought for *796damages and to assume the defense thereof with full right of settlement. After the accident the defendant investigated the facts, and became satisfied that Burns was probably hable for the accident. It authorized Ainsworth, Carlisle & Sullivan to settle with the plaintiff for his damages, paying not to exceed $750. Pursuant to said authorization they requested the plaintiff not to see a lawyer, not to bring an action against any one, and that the defendant would settle with him for his damages, and that the time during which the plaintiff would be disabled from carrying on his ordinary work was uncertain, but that it was understood in substance that he was to be paid $50 per week for his actual disability. The gross amount was to be fixed when the time of disability could better be determined. The plaintiff accepted these terms, agreed not to see a lawyer, or to bring an action, and to settle upon the terms indicated. Burns, whose negligence caused the injury, died before the amount to be paid by the defendant was determined, and thereupon the defendant refused to pay, claiming that the death of Burns , terminated the plaintiff’s right to recover. The company’s representatives had the right to make such settlement. The injuries, however, were not great, and the damages should be limited to the $750, the amount which the representatives were authorized to pay. Such findings would have warranted a recovery. It was error to take the case from the jury. It was incumbent upon the plaintiff to prove the authority of the persons claiming to represent the defendant, and unless the authority was conceded the letter authorizing them to act for the defendant could properly be received in evidence, so far as it showed the authority, and if confidential matters were stated outside of the authority to act, they could be omitted from the evidence.
The judgment should, therefore, be reversed.
All concurred, except H. T. Kellogg, J., dissenting with an opinion in which Cochrane, J., concurred.