Tbe object of tbe action was tbe recovery for a loss caused by a fire burning tbe building and printing office of tbe assignor of tbe plaintiff located at Lancaster in tbe State of South
In the course of this employment he applied to Benjamin F. Welsh to take insurance from the defendant upon the building occupied and used by him as a printing office. Welsh agreed to take the insurance, and an application was filled out, for it in the sum of $1,400; $600 on the printing office and $800 on books and office furniture therein for the term of one year, from January o, 1881. This application was filled out by Nelson, and the sum of twenty-one dollars was paid to him for the premium. The agent then delivered to Welsh a receipt stating the application for the insurance for the term of one year, subject to the approval of the company, and acknowledging the receipt of twenty-one dollars for premium, “ all to be returned if policy is not issued.”
The evidence of Welsh was that he went with the agent, who at the post-office put the application into an envelope and mailed it to J. C. Gettys, general agent for the defendant at Atlanta in Georgia.' His evidence further was that it took a letter three or four days to go from Lancaster, South Carolina, to Atlanta in Georgia and back by rail. But no answer appears to have been made to the application prior to the twenty-fourth day of January, nineteen days after the application had been mailed, and on the night of that day the building with its contents were destroyed by fire. On the fifteenth of February a letter was written to Welsh by S. M. Williams, the manager of the defendant’s business at Atlanta, informing him that the insurance had been declined; that the application had been laid before him on the twenty-sixth, and when the class of hazard was ascertained, it was rejected as a prohibited risk, and the application was returned and the agent so advised. The court considering no liability to have been made out, and no case to have been
No question was made upon the trial as to the right of the plaintiff to maintain the action, if the facts would authorize a ver-. diet against the defendant. In support of his right to do so, it was shown that B. F. Welsh had, prior to the commencement of the suit, assigned the demand, for the recovery of which the action is prosecuted, to the plaintiff, to whom he was at the time indebted. By the letter which was written by Mr. Williams it was stated that Nelson, the agent, was authorized to do no more than to receive and forward applications for insurance for acceptance or rejection, at the office in Atlanta. This statement, while it was evidence upon the trial, was not so controlling as to conclude the plaintiff against taking the position that the company or its general agent had given Nelson such evidences of his authority as to entitle persons dealing with him to assume that he had the power to and did accept risks for the company from the time mentioned in the application; and that the risks so accepted by him would be operative and binding upon the company until it declined to accept, and, in fact, did reject the proposed risk. He was intrusted with blank receipts and blank applications to be used in the course of his business, and some reliance might reasonably be placed upon that fact as indicating an intention to authorize him to accept a proposed risk until it should be rejected by the agency of the company. If that was not the purpose or intention of the general agency, there would seem to be no object for inserting the date in the application from which the insurance was to take effect, or of paying the premiums upon the insurance extending over the period of one year from that date. Then, ordinarily, when the owner of property applies for insurance, and the application and premiums are received by the agent to whom the application is made, it would be his expectation that his property would be protected by a contract of insurance from that time, but liable to be rejected by the company on notice of that fact. That would be the understanding ordinarily arising in the course of the transaction of such business. These agents, under the authority of the general agent, frequently traverse extensive regions of country applying to owners of property to receive insurance, and having
In Walker v. Farmers’ Insurance Company (51 Iowa, 619), it was considered, and so the law undoubtedly is, that the company would be bound from the time of accepting the application. ' The case of Winnesheik Insurance Company v. Holzgrafe (53 Ill., 516) so far passed off upon the rule of evidence in that State that a contract cannot be partly in writing and partly in parol, as to be entitled to no weight in this case.
For the determination of the present appeal it is entirely safe to hold that the case was one for the jury and not for the dismissal of the complaint, and that the plaintiff is entitled to submit the question to the determination of a jury, even if Nelson was not in fact authorized to bind the company from the time of the acceptance of the risk by him and the delivery of the application to him, whether the application was not received and accepted by the general agency at Atlanta before the time when the fire took place. And if it was, then the plaintiff, on this evidence, would be entitled to recover. The judgment should be reversed' and a new trial ordered, with costs to abide the event.
Judgment reversed, new trial ordered, costs to abide event.