(190 P.) his acceptance of the counter offer the con- to Dr. Pond until after the accident. This tract would thereupon have been completed, is in accord with the former's testimony, notwithstanding that Smith did not com- for, as already shown, he said he saw Dr. municate such acceptance to his principal Pond only once-on the afternoon of October before the loss occurred. "If the applicant 2. Smith also testified that he had not been accepts the terms granted by the company in the habit of issuing policies for petitioner, the contract is considered complete, without waiting for the local agent to communicate the acceptance to the company." Cooley, Briefs on Insurance, vol. 1, p. 424. See, also, Tayloe v. Merchants', etc., Co., 50 U. S. (9 How.) 390, 13 L. Ed. 187; Carter v. Bankers' L. I. Co., 83 Neb. 810, 120 N. W. 455; Joyce on Insurance, vol. 1, p. 230. But on this question it must be kept in view, as tending to show that in the mind of at least one of the parties the contract was not complete, that Smith waited until he heard from Dr. Pond concerning the counter offer before ordering the policy, and that when he did hear from him he promptly notified the general agent. [5] It is to be noted, however, that the commission did not in its findings determine the character and scope of Smith's authority as agent for petitioner, and this renders it necessary next to consider whether he could bind petitioner by a parol contract of insurance. Smith testified that "binders" were used in San Francisco, but not in Napa; that he issued none in this instance, but that he had been "advised by Mr. Nason and Mr. Wilson that before the policy is issued the applicant is covered * from the date of the application." Smith's own position-erroneously assumed, as we shall see was that coverage was effected from the date of the application, notwithstanding the contract was not completed before the loss. Wilson, when he was asked whether Smith was "authorized to bind the company from the date of the application, answered, "I don't know." Na son's position was stated as follows: "Q. Is it your custom during that interim [between the original application and the final acceptance or rejection thereof] to consider the man or the assured covered? A. Not unless a binder is given." Dr. Pond testified: "Q. But on October 2d, was it after the accident you called again at Mr. Smith's office? A. It was. Q. And did Mr. Smith at that time tell you that the policy had been applied for or had been issued? A. He told me it had not only been applied for, but I was perfectly secured. * Q. Did he tell you positively that he had made application to the insurance company for you to have a policy issued in your favor? A. Showed me a copy of the application. Read it to me to show that I was secured. * Q. Doctor, did Mr. Smith tell you you were wholly covered? A. Yes. Q. And you never considered that you did not have any insurance? A. I never questioned it for a moment." From this testimony it would appear that Smith did not give assurances of coverage 190 P.-3 and that the invariable custom was to send [6] We turn now to the question whether the finding "that it was the custom and the practice that an assured was covered by the insurance, subsequently provided in the policy, from the date of his application," may be sustained. We cannot determine from the record whether the commission intended to find that such "custom and practice" was followed as well when the contract of insurance was not concluded before a loss as when it was. If the former, from the conclusion we have already reached as to when the contract was completed, we must hold that the finding is not supported by the evidence. In addition to Smith's testimony that he was advised by the general agent and Wilson that an applicant was covered from the date of his application, he stated that in all the policies he had received from the company the date corresponded with that of the application, but he admitted that he had never, except in this instance, sent in an application to petitioner whose terms were not acceptable. Wilson's testimony corroborates that of Smith on the point that the policies sent to him had always borne the date of the application, so as to provide coverage from the beginning, but he does not state that such custom and practice were observed where the terms of an application were not unconditionally accepted by the company. The testimony of Nason and Adams. which we have quoted, tends to show positively that this custom and practice did not prevail in such circumstances. It seems to us that this finding is without support in the evidence. the loss has occurred before the parties had It only remains to consider whether, where come to an understanding upon the terms of the contract, the general agent has authority to issue a policy so as to cover the uncovered loss. The cause was argued before this court and submitted for decision. The submission was subsequently vacated, and the cause set for further argument upon the questions: "(1) As to the authority of the general agent of a foreign insurance company after a loss not amounting to a total loss has occurred to the knowledge of the agent, to deliver a policy of insurance antedated so as to cover the loss, there being at the time no binding agreement for the insurance between the insured and the company; and (2) as to the authority in the particular case of Wilson, the employé of the general agent, to make such delivery on behalf of the general agent, assuming that the general igent had himself such authority." After the above order of resubmission the respondent commission filed a supplemental brief in which, among other points, it is urged that "the actions of the employés of Nason Company were the actions of Nason Company," and in support of the contention the following authorities are cited: International Trust Co. v. Insurance Co., 71 Fed. 81, 17 C. C. A. 608; Mound City Ins. Co. v. Huth, 49 Ala. 529; Electric Ins. Co. v. Fahrenkrug, 68 Ill. 463; Continental Ins. Co. v. Ruckman, 127 Ill. 364, 20 N. E. 77, 11 Am. St. Rep. 121; Mayer v. Ins. Co., 38 Iowa, 304, 18 Am. Rep. 34; Bodinę v. Ins. Co., 51 N. Y. 117, 10 Am. Rep. 566. But we do not deem it necessary to discuss this point, and we shall, therefore, proceed on the assumption that the acts of Wilson and Adams stand as the acts of the general agent just as if Smith had dealt directly with him. The policy was introduced in evidence, and contained the following provisions: "K. No assignment or change of interest and no change, waiver, or extension of any of the terms or conditions of this policy shall be valid, unless indorsed hereon and signed by an officer of the company, nor shall notice to any agent or any other person be held to effect a waiver or change in any part of the policy. M. The term of this policy shall be twelve months from October 3, 1917, beginning and ending at twelve o'clock noon, standard time, at the assured's business address stated herein." It is contended by petitioner that as Nason, according to his own testimony, was not an officer of the company, the alteration of the date of the policy was not binding on petitioner, the policy did not cover liability prior to October 3, and therefore petitioner was not the insurance carrier of Dr. Pond at the time of the accident. But, as the decisive question here is whether the general agent had authority to issue a policy covering a known loss, rather than whether he was authorized to alter a policy properly issued in the first place, we are not called upon to discuss the provision in clause K. is thus stated in Cooley's Briefs on Insurance, vol. 1, at page 354: "It may * * be regarded as elementary that an agent has no authority to insure goods which he knows to have already been destroyed by fire." And this rule finds support in the following cases: Mead v. Phenix Ins. Co., 158 Mass. 124 [32 N. E. 945]; Clark. Ins. Co., 89 Me. 26 [35 Atl. 1008, 35 L. R. A. 276]; Stebbing v. Ins. Co., 60 N. H. 65. And in Waterloo Lumber Co. v. Ins. Co., 158 Iowa, 563, 138 N. W. 504, 51 L. R. A. (N. S.) 539, the court said: "It has frequently been held that an agent has no authority to insure property already destroyed. See, also, Bentley v. Columbia Ins. Co., 17 N. Y. 421; 28 Cent. Dig. p. 703; 11 Dec. Dig. Ins. § 127. The principle laid down in these authorities is equally applicable to compensation insurance. Whether or not the insurer, under all the circumstances, could have issued a policy which covered the loss-either total or partial-the authorities we have cited sustain the proposition that, unless there is a subsisting contract of insurance when the loss occurs, a general agent, in the absence of express authority, has no power to issue a policy. We think it has been made clear One was that in this case there was no contract in policy from October 3 to September 25. The following cases are cited in the brief filed by the respondent commission in support of the proposition that a general agent has authority to issue a policy covering a known loss and binding on his principal: New York Ins. Co. v. Russell, 77 Fed. 103, 23 C. C. A. 43; Insurance Co. v. Colt, 87 U. S. (20 Wall.) 560, 567, 22 L. Ed. 423; Eames v. Home Ins. Co., 94 U. S. 621, 24 L. Ed. 298; Schultz v. Phoenix Ins. Co. (C. C.) 77 Fed. 374, 392; Kennebec v. Insurance Co., 6 Gray (Mass.) 204; Warner v. Insurance Co., 14 Wis. 345; Komula v. Gen. Assurance Co., 165 Wis. 520, 162 N. W. 919. thorities are distinguishable from the case here in that in each of them, prior to the loss, the insured had signified his acceptance of the terms offered by the insurance company, and thus a contract of insurance had been concluded. No authority has been cited, and we are aware of none, holding that a general agent, unless specially authorized, may issue a policy for a known loss, where the terms of the contract of insurance had not already been settled upon. These au (190 P.) tles have entered into a contract before the loss occurs or the policy has been issued, unless the authority of the general agent is expressly delimited, the policy, when issued, by operation of law relates back to the application, and is dated accordingly-the policy being thereafter merely evidence of the contract; but this general rule has no application where the parties were not under contract at the time of the injury, and the general agent is without special authority to issue a policy to cover the loss. Since it appears, then, that no contract of insurance was concluded prior to the accident, that Smith had no authority to bind petitioner by a parol contract of insurance, that the "custom and the practice" found by the commission to have been followed did not extend to a case where, at the time of the loss, the parties had not agreed upon the terms of the contract, and that the general agent was, in such circumstances without authority to issue a policy it follows that the findings cannot be sustained. The award is annulled. been communicated by the one to the other. The whole difficulty arose from the failure of Smith to state in the written application for insurance the fact that Dr. Pond was willing to pay the increased premium. This was not the fault of Dr. Pond. The policy applied for was one dated September 25, 1917, and the policy finally issued and paid for was so dated. Wilson, to all intents and purposes, was the general agent of the company. He conducted the entire business of the general agent, in the name of the general agent, without consultation with him. Upon the insistence of Smith that Dr. Pond was entitled to a policy dated September 25, 1917, in accordance with the custom of the office he issued such a policy so dated, after knowledge of the accident, which policy covered the liability here sought to be enforced. In view of the delay caused by the failure of its agent Smith to communicate to the general agent the facts, namely, the willingness of Dr. Pond to pay the premium asked, which would have resulted in the prompt issuance of the policy, it would seem that common honesty demanded of the de We concur: ANGELLOTTI, C. J.; SHAW, fendant that it accept the responsibility due J.; OLNEY, J.; LENNON, J. WILBUR, J. I dissent. The evidence shows that the Workmen's Compensation Law did not apply to Dr. Pond until, at the solicitation of the agent Smith, he elected to be bound by its terms. The effect of his election was to charge him with responsibility for the injury to his employés under the terms of that law, even if he was wholly without fault, as in this case. Because of such election Dr. Pond evidently intended to keep covered by insurance. Accordingly he notified Smith, petitioner's agent, that he desired an indemnity policy, dating from the expiration of his existing insurance, and that he was willing to pay whatever premium was charged by the company. The petitioner offered its insurance policies for sale to the public generally at a fixed and uniform rate. The terms and provisions of the policy being thus fixed, the question of insurance turned upon the willingness of the prospective policy holder to pay the premium demanded there for by the company. At the time Dr. Pond applied to Smith for the policy he stated that he was willing to pay the premium, whatever it might be. Instead of communicating this fact to the general agent, Smith inserted in the written application the amount of the premium as $10. This resulted in the complications detailed in the main opinion. The evidence discloses that the company was willing to write the policy, and that Pond was willing to pay the amount of the insurance, and this willingness had to the delay of its own agent in communicating a correct statement of the actual terms of the application. The finding of the ultimate fact by the commission was that the written policy which by its terms covered the accident was binding by reason of a previous oral negotiation between the parties. I think the evidence is sufficient to justify this finding. Under somewhat similar facts, in Eames v. Home Ins. Co., 94 U. S. 621, 24 L. Ed. 298, it was held under the circumstances there stated that the acceptance of the rate by the insured in a communication to the local agent was sufficient to bind the company where the rate had been previously fixed by the general agent, and that, although no policy was ever issued, the insurance company was bound. The only difference in the two cases in principle is that in the case at bar the information that the applicant was willing to pay the premium demanded was communicated to the local agent before the premium was fixed by the general agent, and in Eames v. Home Ins. Co. it was communicated afterward. In neither case did the information that the applicant was willing to pay the premium demanded reach the general agent in time for the issuance of the policy before the loss, while in Eames v. Home Ins. Co. the policy was never issued, and in the case at bar it was issued with full knowledge of the fact. I think that Dr. Pond had signified his acceptance of the terms offered by the insurance company and thus a contract of insurance had been concluded. (182 Cal. 369) necessary, stopping; his obligation to so do beYOUNG et al. v. SOUTHERN PAC. CO. et al. ing increased by knowledge that a train is ap (Sac. 2501.) proaching. (Supreme Court of California. March 9, 1920. 6. Railroads 351 (17)-Instruction as to duty On Rehearing, April 7, 1920.) to look after passing obstruction created by defendant held error. 1. Railroads 348 (9)-Evidence held to show contributory negligence of motorcyclist crossing track. In an action for the death of a motorcycle driver struck after passing standing cars obstructing his view of a track on which a car was being pushed by an engine, evidence held to justify a finding of contributory negligence in failing to stop, look, and listen. In action for death of motorcyclist struck by cars on main track of crossing after having passed standing cars on passing track obstructing his view of main track, instruction that failure to stop, look, and listen is not negligence where railroad has created conditions causing ordinarily prudent person to refrain from exercising such precautions held error, where motorcyclist, after passing standing car, had threemile view of main track; he being under obli 2. Railroads 328 (1)—Motorcyclist held con- gations to look and listen notwithstanding obtributorily negligent as matter of law. A motorcycle rider who failed to stop and look, though his view was obstructed by standing cars, and attempted to cross, heedless of warning bells and whistle, and gesticulations and cries of bystanders and warning shouted by brakeman a few feet away, held contributorily negligent as a matter of law. 3. Trial 193(3)—Instruction as to burden of proving contributory negligence held erroneous as indicating court's opinion as to evidence. struction. 7. Negligence 83-Contributory negligence no bar to recovery under last clear chance doctrine. Contributory negligence does not preclude recovery under the last clear chance doctrine, which is founded upon the theory that the injured person was guilty of negligence. 8. Trial 252(9)—Instruction on last clear chance doctrine held improper as without support in evidence. In a negligence action, where plaintiff in opening case put before the jury all the ele-ing, ments that went to disclose contributory negligence so that defendant's evidence did not materially add thereto in establishment of contributory negligence, and where plaintiff's evidence showed contributory negligence as a matter of law, an instruction that contributory negligence is not to be inferred from plaintiff's testimony, and is to be affirmatively shown by defendant, I would have been error, in that it would have led jury to believe that in court's opinion such evidence was insufficient to establish contributory negligence. 4. Railroads 351 (17) Instruction as to duty of traveler to look after passing obstruction, to view held error. In action for death of motorcyclist struck at railroad crossing after having passed standing box cars extending into street and obstructing his view of other track, where after passing the standing cars he had an unobstructed view of other track for nearly three miles, instruction that, if box cars excluded view of track "when about to go upon such track, the traveler is excused from looking" held error, in leading jury to think that deceased had been under no obligation to look after passing standing cars, whereas he was required to look if by looking after passing standing cars he could have seen car approach on other track. 5. Railroads 328 (10) Motorcyclist approaching obstructed crossing required to stop, look, and listen. In action for death of motorcyclist at crossinstruction on last clear chance doctrine, authorizing recovery for plaintiffs on railroad's failure to stop train if circumstances were such as to have led an ordinarily prudent person, situated as the trainmen, to believe that motorcyclist was in the act of crossing the track, and through fear, excitement, or loss of self-control could not stop, held improper, where there was no evidence that driver was acting under fear cident was unavoidable. or excitement, or had lost self-control until ac 9. Railroads 338-Last clear chance doctrine defined. Under the last clear chance doctrine, the traveler's peril, which calls upon the trainmen to act, must be an actual one from which he cannot escape by the exercise of ordinary care; and, until he has reached the point from which he cannot escape by the exercise of such care, the doctrine does not apply. 10. Trial 219-Instruction requiring "proper warning," without specifying any standard, improper. In an action for death at crossing, instruction that railroad is required to give "proper warning," without defining any standard as to what constituted proper warning, held improper. 11. Trial 251 (8)—Instruction as to negligence not pleaded improper. In an action for death at crossing, instrucA motorcyclist, approaching a crossing with tion that railroad was required to have some standing cars obstructing his view of cars ap- one stationed at the crossing to give proper proaching on another track while bell is ring-warning held improper, where complaint did not ing and whistle blowing, is negligent in attempt- allege railroad's failure to have brakeman at ing to cross without looking, listening, and, if crossing as the basis of the claim of negligence. (190 P.) 12. Evidence 588—Credibility of witness for | company, was struck by a caboose, which was jury. being pushed by an engine, and killed. JoinThe jury can disbelieve the testimony of any ed with the defendant company were G. E. witness. 13. Appeal and error 1002-Verdict on conflicting evidence not disturbed. Where evidence was conflicting, verdict supported by substantial evidence will not be disturbed, as the jury is the exclusive judge of the facts. 14. Appeal and error 1170(9)—Erroneous instructions held prejudicial. In action for death at crossing, erroneous instructions as to contributory negligence and the last clear chance doctrine, held ground for reversal on appeal from judgment for plaintiff, notwithstanding Const. art. 6, § 42, in view of insufficiency of evidence to prove defendants liable under last clear chance doctrine, and verdict against train employés against whom last clear chance doctrine was not available, as well as against those who would have been liable thereunder, indicating that the verdict was not rendered under such doctrine. Olney and Lawlor, JJ., dissenting. Waite, conductor, W. H. Jones, engineer, and G. C. Conley and B. C. Neibling, brakemen, of the train. The case was tried by a jury, and a verdict rendered against all of the defendants. As a part of the plaintiffs' case a diagram of the scene of the accident was introduced in evidence. From this it appears that crossing Main street at and near the place of the accident were two tracks of the railway company, one the main line track and In approaching another a passing track. the point of collision the deceased first crossed the passing track and then the main track. At the time of the accident the train involved in the accident was being broken up and a part thereof was standing on the passing track. The engine and caboose were on the main track. The complaint alleges that the defendants were negligent in allowing a portion of the train to stand upon the passing track in such manner that a portion thereof projected into and partially crossed Main street, "so that the northerly end of said train of cars extended from the south side of said Main street into the said Main street a distance of about 15 feet," thereby obscuring the view of a person traveling westerly on Main street and preventing such person from observing the approach of cars "being propelled in front of an engine, in the event an engine shoving cars was being run on said main line track in a northerly direction towards such railroad crossing, and would be misled and deceived into believing that no cars were being propelled by or shoved by said engine." That immediately prior to the collision the engine of the defendant company was pushing a caboose northward along the track, the engine being fronted north and the caboose in front thereof; that the deceased had no knowledge or notice Appeal from Superior Court, Yolo County; of the fact that the defendants were engaged H. D. Burroughs, Judge. Action by Roy J. Young, as special administrator of the estate of Jacob Bluhm, deceased, and another against the Southern Pacific Company and others. Judgment for plaintiffs, and defendants appeal. Reversed. Devlin & Devlin, of Sacramento, Hudson Grant, of Woodland, and A. L. Clark, of San Francisco, for appellants. Clark, Black & Clark, of Berkeley, for respondents. WILBUR, J. This action was brought by the father and mother of Fred C. Bluhm to recover damages for the death of their son. The father has died, and the special adminis in running an engine propelling or shoving a caboose in front of it in a northerly direction along said main line track, and that by reason of the location of said portions of said train of cars on said passing track he was misled and deceived into believing that he could go safely over said crossing. Immediately before the trial began plaintiffs amended their complaint to add a count charging negligence under the last clear chance doctrine, in which they alleged the same situa tion with reference to the cars and tracks. It was alleged: portion of said train of cars so placed and al"That as he passed the northerly end of said lowed so to remain on said passing track, he for the first time discovered that the defendants were engaged in running an engine propelling Fred C. Bluhm, while riding a motorcycle and shoving a caboose in front of it in a northalong Main street in the city of Woodland erly direction along said main line track, toacross the railway track of the defendant wards the point where he was about to pass trator of his estate has been substituted. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |