Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1910-06-08


as in the place of the company in all
respects but We're as a matter of fact
subrogated to the authority of the COM
pany TO issue policies. at least, to issue
TINS policy to the plaintiff: Had they
Thorne. and had he done precisely what
Mr.. Burns knew with respect to the APP
plicant. could it be possible that the de-
acts and knowledge of this office employe
on the ground that he was not an agent ?
If so, the statute intended for the pro-
lection of the assured becomes q decep-
ton and an open door to the commission
of fraud. The defendant could receive all
the benefits of premiums without the as
sumption OF any of the risks of insur-
ance. But what is the distinction he
tween the sending ont an Office employe
to solicit this Dolicy. and ratifying the
acts of Mr.. Burns. who had solicited it.?
Mr.. Thorne had no knowledge of the
company in which he was to be insured
His application was made out by Mr.
Burns, who had full knowledge of the
risk. Mr. Burns took the application
away and returned with il policy duly
issued by the defendant company for
which he paid the required premium. By
delivering the policy to Mr.. Burns TO be
by him delivered to the plaintiff. Ma
comber Farr & Written by that act
made Mr.. Burns their agent But when
they made him their agent they were
presumed to have knowledge the what
ever Mr.. Burns knew OF the physical de-
iSCtS VI lHt dSSuEtu, tHeg .~Oulu ne
charged with knowing. The statute will
not permit an authorized agent to escape
responsibility by using dummies. The
Macomber. Farr & Written Company
were therefore put upon their inquiry as
to whether Mr.. Burns was cognlZant of
any physical defects, knowledge al which
might be regarded as a waive. of any
warranty. Not having made inquiry.
Which II may be presumed would have
revealed Burns knowledge, they must
now be estopped from asserting that they
did not know of the defects OF which
burns knew. Therefore. Mr.. Burns
knowledge became their knowledge, and
their knowledge, under the statute, b.
came that of the defendant company
We think the logical deduction from the
facts is that the defendant company
should under the statute be made charg-
cable with KNOWLEDGE of the physical de-
fects Of the assured, and held to have
application as related to them
with the most unfeiSned respect for the
learned State court, we are unable to
follow its reasoning or to reach its con-
PENDANTS agent in the purchase and is
suance of the policy. Upon this propo
sition hangs all the courts reasoning
We can find no evidence that Burns was
livery of the policies to the plaintiff ap-
pears to have been an act done by him
as the plaintiffs broker. He was en-
ployed by the plaintiff to get the insur-
ance. His discretion to choose the com
pany did not weaken his agency In the
applications he spoke in the plaintiff
name. The qualification of his sigma
ture as Broker" etc, was only to comply
with the Maine Rev. SITS, chap. 49, sec.
50. and need not be discussed further.
To us 1t seems that the defendant did not
ratify the acts of Mr.. Burns. We do not
think that contractor, in ignorance
thereof. ratifes or condones false state
ments of the contractors agent upon
which the contract is based. merely by
delivering to that agent the instrument
of the contract that he may hand it to
his principal; an. we do not think that
the contractee's agent is made the agent
of the contractor merely because the
through the agents hands We think
that the payment of the commission by
the defendant to Burns according to the
common usage did not affect the matter.
The false statements of the application
upon which are based the warranties of
the policy are expressed as the repre- |
sentations of the plaintiff If, in making
them, Burns was acting as the defend |
ants agent they would be valueless to
the defendant and altogether meaning
less. Let us suppose that A employs 3,
a real estate broker. to hire a cottage for
him at the seaside for three months. r
obtains, by false representations, a writ
ten agreement for lease from G EN-
bodying the representations as the war
ranties of A. B hands the agreement to
A. having received the rent from A and
paid it to c, and having received his com
mission from C. Can be held upon the
agreement under these circumstances,
on the theory that BIS knowledge of the
fasity of the representations in his
knowledge, and that through BIS agency
he has waived the conditions which I've
inserted for his own protection? We
think not, and We think the put is
analogous to the. case at bar. Burns was
the agent of Thorne, not the agent OF the
insurance company.
After examining the earJeer cases de-
rl(l9d hV the Sllprp nf Maine
we are unable to find in them support
for the proposition above quoted that
by delivering the policy to Br. Burns to
be by him delivered to the plaintiff. (the
defendanD by that act made Mr.. Burns
their agent"
The question presented to MS is not
that Of the construction Of Maine sta
tute, but of the effect of the act of an
insurance company in dealing in the
usual manner with an applicants insur-
ance broker. There is strength in the
argument that this effect is a matter OF
general law concerning which the Fed
eral courts should reach an Independent |
decision. But even if this be not true, |
vet We have not here to deal with a
lished in Maine at the time the contract |
was entered into. The Casualty Com |
pany's case arose out of the same cir |
cumstances as did the case at the bar. !
With all disposition to lean toward agree |
ment with the State court we find our |
selves unable to agree. That we are not |
compelled to follow its decision appears |
to us settled by Kuhn V. Paramount Coal |
Co.. 2l5 U. S. 349 where the decision of |
the State court dealt with that which |
was more nearly matter of local law |
than does the Maine case cited.
The judgement of the Circuit Court is |
reversed. the verdict Is set aside. the case |
is remanded to that court for further /
proceedings not inconsistent with this |
opinion. and the appellant RECEIVERS it's |
costs of appeal.