#### Wisconsin Central Railway Company, Respondent, vs. Phœnix Insurance Company of Hartford, Connecticut, Appellant.

*November 17*

December *13, 1904.*

*Fire insurance: Agents: Employment to procu-re insurance: Authority of agent: Cancellation of policy: Evidence.*

1. An insurance agent may he the agent of the assured in procuring insurance, hut, when a conflict of duties arises, his authority to act for the assured must yield to his duty as agent for the insurance company imposed hy sec. 1977, Stats. 1898.

2. Where an agent is employed to procure insurance, such employment, in itself, does not authorize him to represent the assured for the purpose of receiving notice of cancellation of subsisting insurance, and to substitute other insurance in place of the insurance sought to he cancelled.

3. Where an insurance agent procures insurance for the owner hy applying to another agent to write it, without any direction from the assured to the latter, the agent receiving the order from the assured, hy force of sec. 1977, Stats. 1898, is the agent of the company issuing the insurance.

4. In an action on insurance policies issued hy defendant’s agent at the request of F. & L., insurance brokers to whom plaintiff had applied for insurance, it appeared, among other things, that the defendant’s agent attempted to cancel such policies and substitute others. Under the evidence stated in the opinion, it is *held*that F. & L. had no express or apparent authority from plaintiff to represent it and to receive notice of cancellation of policies, or to procure and accept new insurance in place of the subsisting policies ordered cancelled hy defendant.

Appeal from a judgment of tlie circuit court for Winnebago county: Geo. W. Burnell, Circuit Judge.

*Affirmed.*

An action upon two policies, issued by the defendant insurance company to plaintiff, upon shingles of plaintiff at Menasha, Wisconsin. One policy bears date January 31, 1903, for $2,500, and the other, February Y, 1903, for $1,000. It appears that the insurance was effected by Furlong & Leedom, who were engaged in the insurance business in the city of Milwaukee at the time these policies were *314issued, and bad conducted a business as insurance brokers for a considerable period prior to tbis time. At the time of this transaction and for some time prior thereto, Tbos. IT. Grill bad been the general attorney of plaintiff, and bad had general charge of plaintiff’s insurance business. He requested Eurlong & Leedom, on the 31st of January, 1903,, to place insurance on shingles in plaintiff’s possession for transit at Menasha, Wisconsin, to the amount of $64,000. A part of the insurance was placed by Eurlong & Leedom in-companies they represented, but the greater portion of it they requested Eieweger & Oo., who did a local insnrance-business at Menasha, to place in companies represented by them. Among the policies they issued were the two policies sued on — one for the amount of'$2,500, under date of January 31,' 1903; and another for the amount of $1,000, under-date of February 7, 1903. These policies were in the form of' the Wisconsin standard fire insurance policy, insuring plaintiff against loss on these shingles for a year. The policies were-sent to' Eurlong & Leedom by Eieweger & Co., and were delivered to Mr. Gill for plaintiff, and he had possession of them-at the time of the fire, which occurred at the hour of 10:45 a. m. of February 19, 1903. After the policies were reported as issued by Eieweger & Co., some of the companies directed' Fieweger & Go. to cancel policies, because they did not wish to carry this risk. In carrying out these instructions for cancellation, Eieweger & Go. made the usual entries in their office' books of policies issued, noting the direction to cancel, and they then substituted policies of other companies for the-amount canceled, and they then communicated by letter with Eurlong *&*Leedom, informing them that they were directed to cancel the policies designated, and inclosing the substituted policies. Upon receipt of such letters and policies, Eurlong & Leedom made entries upon their office record to the effect that letters with substituted policies had been received, and that the original policies were ordered canceled, and there*315after they called upon. Mr. Gill to apprise him of the substitution, and to demand an exchange, delivering the substituted policies, and receiving the original policies from him. On February *17,*1903, Eieweger & Oo. wrote Eurlong & Leedom, inclosing several policies, as substitutes for the two policies in suit and others which they had been directed to cancel. This letter, with inclosures, reached Furlong & Leedom on the morning of February 18th, and they immediately made the usual entries of receipt and cancellation in their office books, sought telephone communication with Mr. Gill concerning the transaction on the 19th of February, but could not reach him on account of his absence from the city of Milwaukee. On the 20th of February, Mr. Leedom called at Mr. Gill’s office, informed him of the communication from Fieweger *&*Co. received by his firm on the 18th of February, tendered him the substituted policies, and demanded return of those for which the substitutes were offered. Mr. Gill refused to receive the policies then tendered him, and' refused to deliver those demanded of him, stating that he knew of no policies covering the loss aside from those in his-possession. No formal notice of cancellation under the provisions of the policies is claimed to have been given. The court found that Furlong *&*Leedom had no express authority from plaintiff to cancel any of its policies, and that no substitution of any of its policies was effected, and that the-usual course of conducting the business of insurance conferred no authority on Furlong & Leedom to cancel policies.. To effect a substitution, policies had to be delivered to Mr. Gill, be approved and accepted by him, and those for which-the substitutes were offered had to be surrendered by him. It appeared that Furlong & Leedom received separate orders-from Mr. Gill when plaintiff wished 'to place any insurance-through their agency, and that they received their compensation by way of commissions on policies issued by companies they represented and by division of the commissions on *316the policies written by the local agent. Mr. Gill testifies that '.he gaye no express orders to Furlong & Leedom to keep the .line of insurance so ordered by him up to the full amount, ■ either in the case of these shingles or at any other time, and that he at no time, gave them express authority to cancel or •substitute policies. This statement is corroborated by the agent’s testimony. Proof'of loss was made by plaintiff to defendant under the policies in suit. Defendant denied liability. The court found defendant liable under the policies, and awarded judgment for the amount due thereon in plaintiff’s favor. Defendant appeals from the judgment.

Eor the appellant there was a brief by Miller, *Noyes & .Miller,*and oral argument by *Geo. H. Noyes.*

*M. G.*Phillips, of counsel, for the respondent.

SiebecKeb, J.

Upon the foregoing statement of facts of ■the case the circuit court held that Furlong & Leedom were ■not the agents of the plaintiff to receive notice to cancel sub.-sisting insurance, and held that the policies sued on'were in force at the time of the fire. It is strenuously insisted by •the defendant that the facts and circumstances show that Furlong & Leedom had authority from the plaintiff to rc-■ceive notice to cancel subsisting policies‘and procure substituted insurance to keep'up the full line of insurance origin•ally ordered. An insurance agent may be the agent of the .assured in procuring insurance, if his duties as such agent do not conflict with his duties as agent of the insurance company, under sec. 1917, Stats. 1898; but when a conflict of •duties arises his authority to act for the assured must yield to ■that imposed by this statute. *Schauer v. Queen Ins. Co. 88*Wis. 561, 60 N. W. 994; *John R. Davis L. Co. v. Hartford Ins. Co.*95 Wis. 226, 70 N. W. 84; *Welch v. Fire Asso.*120 Wis. 456, 98 N. W. 227. It is also well established that, •where an agent is employed to procure insurance, such employment, in itself, does not authorize him to represent the *317assured to receive notice of cancellation of subsisting insurance and to substitute other insurance in place of the insurance sought to be canceled. *Body v. Hartford Ins. Co.*63 Wis. 157, 23 N. W. 132; *Wicks Bros. v. Scottish U. & N. Ins. Co.*107 Wis. 606, 83 N. W. 781. The facts of the *Body Case*correspond to those of the instant case as to the manner’ of procuring insurance through an agent applying to'another agency to write it. There, as here, the application was made-to an agency, which placed the insurance through another,, without a direction from the assured to the latter. Under such circumstances the agency receiving the order from the-assured are, under sec. 1977, Stats. 1898, the agents of the insurance company issuing the insurance. The question, then, is, do the facts and circumstances proven in the case-show that Eurlong & Leedom had express or apparent author--ity from plaintiff to act for it in receiving notice to cancel' subsisting policies ? The record discloses that both Mr. Gill- and Mr. Leedom testified on the subject of express authority, and denied that any was ever given or received. We find no other evidence directly on this subject, and must therefore-conclude that plaintiff gave no such authority to Eurlong &: Leedom by express direction.

It is contended that the policies sued on had been terminated by the issuance and delivery of substituted insurance ■ by Eurlong & Leedom, upon the ground that the course of' business as conducted between them amounted to giving authority to cancel subsisting insurance and substituting other-policies. This is predicated upon the claim that whenever these agents received notice of cancellation of any insurance-they made an office record of such notice, and made entries on their office books declaring such policies canceled and others-substituted as of the time and under the date of the original policy, and they thereupon delivered such substituted policies ■ to Mr. Gill, by whom they were received in place of the canceled policies. It is also claimed that this course of conduct-*318mg tbe business was a direction to tbe agents to keep up tbe line of insurance to tbe full amount; and that tbis was done by them, it is claimed, is evidenced by tbe way they made substitution whenever directions to cancel policies came to their notice. We cannot assent to these contentions. It seems to us that tbe findings of the trial court against tbis view are abundantly supported by the evidence. It is shown without contradiction that Hr. Gill gave specific direction on each occasion when ordering insurance to be placed, as to the amount, and no policy was ever accepted unless he approved of the company issuing it, and the amount for and the terms upon which it ivas written. It also appears that he retained possession of the policies, and that, when apprised of tbe fact that insurance was ordered canceled, he would determine whether the policies held by him were to be surrendered, whether the insurance was to be kept up to the original amount, and whether the substituted policies were to be ■accepted. Nor did Messrs. Furlong & Leedom receive their ■compensation from'plaintiff. Whatever compensation they received was paid directly by the companies, or was received by them by a division of the commission with the local agents. Furthermore, eveyy order for insurance given them seems to have been undertaken and executed as a separate and distinct employment in procuring insurance and receiving payment of premiums. Under these facts and circumstances it must be-held that Furlong & Leedom had no express or apparent authority from plaintiff to represent it and to receive notice of cancellation of policies, or to procure and accept new insurance in place of subsisting policies ordered canceled. Their duties, under the orders of Mr. Gill, were performed and completed when the policies first issued were delivered to him. Policies could be terminated only in conformity to • their stipulation, or by agreement with him as the company’s representative. Their employment and the course of conducting the business in procuring the insurance for plaintiff *319•gave them no authority to receive' notice of or to consent to cancellation, nor were they authorized to keep up the insurance to the amount originally ordered. Similar transactions were considered by the courts in the following cases, and like conclusions reached: *White v. Ins. Co. of N. Y.*93 Fed. 161; *Grace v. American Cent. Ins. Co.*109 U. S. 278, 3 Sup. Ct. 207; *Buick v. Mechanics’ Ins. Co.*103 Mich. 75, 61 N W. 337; *Stebbins v. Lancashire Ins. Co.*60 N. H. 65. 'The findings of the trial court axe fully sustained by the evidence, and must be affirmed.

*Ihj the Court.*— Judgment affirmed.