{ "id": 2555587, "name": "Fowler Cycle Works v. Western Insurance Company of Pittsburgh, Pa.", "name_abbreviation": "Fowler Cycle Works v. Western Insurance Co. of Pittsburgh", "decision_date": "1904-01-19", "docket_number": "Gen. No. 10,886", "first_page": "631", "last_page": "638", "citations": [ { "type": "official", "cite": "111 Ill. App. 631" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "88 Wis. 561", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 11283321 ], "opinion_index": 0, "case_paths": [ "/wis/88/0561-01" ] }, { "cite": "64 N. Y. 85", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2161928 ], "opinion_index": 0, "case_paths": [ "/ny/64/0085-01" ] }, { "cite": "45 Ill. App. 22", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5078948 ], "opinion_index": 0, "case_paths": [ "/ill-app/45/0022-01" ] }, { "cite": "11 Ill. App. 230", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5777453 ], "opinion_index": 0, "case_paths": [ "/ill-app/11/0230-01" ] } ], "analysis": { "cardinality": 648, "char_count": 15010, "ocr_confidence": 0.539, "pagerank": { "raw": 1.5405748394676824e-07, "percentile": 0.6728069860443601 }, "sha256": "634aacf640ecf0c6fb07a4362d42d0374bf9f63bb62cf4eb7fb7d41191ea64e1", "simhash": "1:066b33e110e3636f", "word_count": 2615 }, "last_updated": "2023-07-14T17:54:24.452659+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Fowler Cycle Works v. Western Insurance Company of Pittsburgh, Pa." ], "opinions": [ { "text": "Mb. Justice Stein\ndelivered the opinion of the court.\nIf LeMay had authority express or implied from appellant to request the cancellation of the policy sued on at the time the request is alleged to have been made, then the cancellation was valid and the judgment in favor of the company should be affirmed; otherwise not.\nGenerally speaking, possession of a policy by an insurance broker confers upon him implied authority to procure its cancellation. Newark Ins. Co. v. Sammons, 11 Ill. App. 230; Ins. Co. v. Bermond, 45 Ill. App. 22; Oil Co. v. Ins. Co., 64 N. Y. 85; Schauer v. Ins. Co., 88 Wis. 561. But that consideration is not conclusive in respect of the issues in the present case. Here, appellee was informed at the very time when the request for cancellation was made that the person making it or (to speak more accurately) causing it to be made had ceased to be the agent of the party owning the policy. By this information the implication of authority arising from the mere physical possession of the policy was destroyed. If a man were to say to the representative of an insurance company, \u201c here is a policy belonging to A, I am not his agent, but it is in my possession and I want you to cancel it,\u201d it is safe to assert that the person so addressed would refuse to comply with the request; and if he did, it is beyond all controversy that the cancellation would be void. Yet that is virtually what took place. The company through its representative was told that appellant had transferred its insurance line from LeMay & Go. to Kennedy & Co., \u201c that the line had gone to Kennedy & Co. and they would call for the insurance.\u201d\nWe do not lose sight of the fact (although so far as appears the company was ignorant of it) that some limited authority was left in LeMay & Co. by the letter of Eovember 23. They were still to complete the work of increasing appellant\u2019s insurance to $40,000, and to change the form of the policies. The proof shows, however, that the request to cancel was not made in pursuance or in execution of the power still remaining. It was not made for the purpose of increasing appellant\u2019s insurance or changing the form of any of its policies. Indeed LeMay does not so pretend. Moved as he appears to have been by a feeling of spite or vexation at the loss of appellant\u2019s business he was willing and possibly wanted to have the policy cancelled \u201c so far as our account is concerned.\u201d The further fate of\u2019the policy seems to have been a matter of indifference to him.\nIt remains to be considered whether the work to be completed by him carried with it an implied authority to bring about the cancellation of the policy in suit. He himself says \u201c at the time these policies were cancelled Kennedy & Co. were acting for \u201d appellant; \u201c I was' not. I did nothing further for them after I received the letter \u201d of Hovember 23. This is his own view. Under the letter he might have taken out further policies. It is not perceived how this gives rise to a power to do the exact opposite. He was also to procure a change in the form of appellant\u2019s policies. Clearly this applied to the policies which were handed to him when he was lirst employed by appellant. In the absence of proof to the contrary, it should be presumed that he took out the policy in suit (which he did subsequently) in accordance with the prescribed form. Ho occasion is shown or claimed to exist for having the policy cancelled in connection with any change in its form. If appellee\u2019s representative had (as he should have done) inquired of Le-May\u2019s clerk what authority he had for requesting a cancellation in view of the fact that his employer, LeMay, had ceased to be appellant\u2019s agent, and the clerk had answered that LeMay was still to increase appellant\u2019s insurance and change the form of its policies, the representative of appellee would or surely should have replied, \u201c Yes, but that is not what you are asking me to do.\u201d\nThe proof tends to show and we are inclined to believe that Holmes & Co., the general agents of the company, cancelled^ the policy of their own volition, a thing they could not do under its terms without giving five days\u2019 notice to the insured. Ho notice was given. True, Mr. Holmes\u2019 clerk testified that the policy was cancelled at the request of LeMay; but this is a mere conclusion. Why the policy was cancelled and how it came to be cancelled appears from the testimony of Wetsel, clerk of Holmes & Co., when he says : \u201c Our object in cancelling it when he (LeMay\u2019s clerk) told us Mr. Kennedy was coming for it was because at that time we were not writing bicycle factories except as an accommodation. We didn\u2019t consider them a good risk.\u201d The testimony of Mr. Holmes upon the same subject is noteworthy. Being asked whether, where a broker brings the policy in for cancellation he considered it was cancelled at the request of the insured, he answered : \u201c In this case, I should say yes. Let me modify that\u2014well, I should say 3res, that wherever this agent, wherever the broker who places the order with us for the insurance brings in the policy for cancellation, we cancelled the policy.\u201d Q. \u201c And you cancelled it at the request of the insured ? \u201d A. \u201c That would depend.\u201d Q. \u201c Depend upon what ? \u201d A. \u201c It would depend upon the circumstances.\u201d Q. \u201c What circumstances were there in connection with this case that you cancelled it at the request of the company ? \u201d A. \u201cWe were tickled to death to get off the risk.\u201d Q. \u201c Did you give notice, you say ? \u201d A. \u201c Ho, sir; I say Ave were pleased to get off the risk.\u201d The last question but one assumes that the policy was cancelled \u201cat the request of the company;\u201d he does not deny the assumption, and says they were tickled to death, pleased, to get off the risk.\nIt should also be borne in mind that LeMay did not instruct his clerk, by whom he returned the policy to Holmes & Co., that he Avanted it cancelled. His language Avas \u201c he (Holmes) could cancel the policy himself if he chose to do it.\u201d\nAccording to the terms of the policy, if cancelled at the instance of the insured, the return premium is figured at short rates; if cancelled at the instance of the company, it is figured pro rata. In the present case, it is figured j>ro rata, indicating that the policy was cancelled at the instance of appellee. True, Wetsel says this Avas done \u201c as a favor to LeMay & Co.,\u201d but the reason he assigns for so figuring the return premium possesses as little weight and validity as the attempted cancellation. If a favor was done to any one, it Avould be not to LeMay & Co. but to appellant; it and it alone Avould receive the benefit of the greater amount paid back.\nIf we are correct in our conclusion that the policy Avas cancelled at appellee\u2019s instance, it necessarily follows, no notice thereof having been given to appellant, that it ay as in full force at the time of the fire. \u2022\nFor the reasons indicated appellant is entitled to recover. The judgment of the Circuit Court will be reversed and judgment entered here for the s mi of $865.19, Avith interest theTeon at the rate of five per cent per annum from February 12, 1901, less the premium, $15.20, with like rate of interest thereon from November 26,1900, a finding of facts to be embodied in the judgment.\nReversed, and judgment here.", "type": "majority", "author": "Mb. Justice Stein" }, { "text": "Upon petition for rehearing.\nPer Curiam :\nBy the petition we are for the first time\ntold that the abstract of the record is defective and that some of the evidence introduced by appellant was received over objection and upon promise of connection which it is now claimed was not kept, and that this and other evidence received over objection was, as counsel believe, disregarded by the trial judge.\nGranting all that is claimed in this behalf, it would only affect that part of the opinion in which we held that Holmes cancelled the policy of his own volition, and not that part which holds that Holmes, having notice of LeMay\u2019s being no longer appellant\u2019s agent, could not legally cancel the policy at his request. The petition for rehearing is therefore denied.\nRetition denied.", "type": "rehearing", "author": "Per Curiam :" } ], "attorneys": [ "Charles J. Trainor, for appellant.", "Stein & Platt, for appellee." ], "corrections": "", "head_matter": "Fowler Cycle Works v. Western Insurance Company of Pittsburgh, Pa.\nGen. No. 10,886.\n1. Insurance policy\u2014when cancellation of an, is valid. Where an agent has authority, either express or implied, to request the cancellation of an insurance policy, a cancellation by the company upon his request is valid.\n3. Insurance policy\u2014when agent is unauthorized to cause the cancellation of an. Generally speaking, the possession of an insurance policy by an insurance broker confers upon him implied authority to procure its cancellation, but this implication of authority is rebutted where, at the time a request for cancellation is made by such broker, the insurance company is informed that he has ceased to be the agent of the party owning the policy.\n3. Insurance policy\u2014when agent is unauthorized to cause the cancellation of an. Where an insurance broker has possession of a certain insurance policy belonging to another, but is the agent of such other only for the purpose of obtaining certain additional insurance and having the fonn of certain policies changed, he has no implied authority, notwithstanding such possession, to cause a cancellation thereof.\n4. Insurance policy\u2014when insurance company has no power to cancel an. An insurance company cannot cancel an insurance policy upon its own volition without the giving of notice, where such insurance policy provides for notice of intention to cancel.\nAction of assumpsit upon fire insurance policy. Appeal from the Circuit Court of Cook County; Hon. Elbridqe Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1003.\nReversed, and judgment here.\nOpinion filed January 19, 1904.\nRehearing denied February 13, 1904.\nCharles J. Trainor, for appellant.\nStein & Platt, for appellee.\nStatement by the Court. This was a suit upon a fire insurance policy for $1,000, insuring appellant\u2019s bicycle factory for one year, and issued by appellee September 14, 1900. Appellee\u2019s share of a loss by fire which occurred December 14,1900, was $883.19.\nThe trial court, sitting without a jury (the same having been waived by agreement of parties), rendered judgment for appellee, holding that the policy had been cancelled before the fire, to-wit, November 26, 1900. Appellant claims the cancellation was invalid and that the policy was in force. Holmes & Co. were appellee\u2019s general agents in Chicago. W. G. LeMay & Co. and A. D. Kennedy & Co. were each agents of certain other insurance companies and also insurance brokers. Up to May 1, 1900, LeMay had been connected with Kennedy in the brokerage business, but at that time opened an office on his own account. Kennedy & Co. had been placing appellant\u2019s insurance until about September 1, 1900, when appellant, which at that time was about to move its business, handed its policies to LeMay with instructions to obtain the consent of the companies that had issued them to the removal and take out new policies in place of such as to which the consent could not be obtained. Several companies refusing to consent, the policy in suit, together with some others, was issued September 14,1900, upon LeMay\u2019s application and remained in his possession. It never was in the actual possession of appellant, and appellant did not learn that there was such a policy until after the fire.\nOn November 23, 1900, LeMay received the following letter from appellant:\n\u201cNov. 2'3, 1900.\n\u201c Messrs. W. G. LeMay & Co., 184 LaSalle St., City.\nGentlemen: A decision has been arrived at whereby the A. D. Kennedy Co. have been given charge of all insurance, including the factory and Mr. Fowler\u2019s personal matters. We would, therefore, request that you kindly complete the work that you have undertaken on the policies in your possession at the very earliest possible moment and in regard to the policies expiring on the 27th\u2014under the new arrangement, of course, A. D. Kennedy & Co. will take care of it.\nAs soon as you have everything fixed up, please deliver to A. D. Kennedy & Co., and oblige,\nTours very truly,\nFowler Cycle Works. \u2022 \u2022 1ST. Stabler, Sec\u2019y.\u201d\nThe work to be completed by LeMay, mentioned in the letter, referred to instructions previously given him by appellant to increase its insurance to $40,000, and change the form of its policies in certain respects. Appellant had given LeMay policies aggregating $31,500. After receiving the foregoing letter, he surrendered to Kennedy policies representing $20,000, saying the others had been cancelled and that he had obtained in lieu thereof new ones, including the one in suit. These he refused to give to Kennedy but told him that he, LeMay, would hand them to the companies that had issued them and Kennedy might get them there.\nAt the trial LeMay testified :\n\u201c I returned this policy (the one sued on) to Mr. Holmes, the agent of the defendant company. I don\u2019t know whether I took it there personally or my clerk. I know it was sent back and they were informed that the Fowler line (meaning appellant\u2019s) had been transferred to Kennedy & Co., and that I was through with it and they could cancel it so far as I was concerned, so far as our account was concerned, * * * that he could cancel the policy himself if he chose to do it. * * * I did not see Holmes personally.\u201d\nThe policy contained the usual clause that it might be cancelled at the request of the insured, \u201c this company retaining the customary short rate \u201d of the unearned premium, or that it might be cancelled by the company upon five days\u2019 notice in which 'case it should r.etain the pro rata premium only. \u00bb\nJ. E. Wetsel, clerk for Holmes & Co., testified that he received the policy from the clerk of LeMay & Co. who handed it to him \u201c with the request that it be cancelled pro rata. The line of insurance had gone to A. D. Kennedy & Co. I figured the cancellation * * * and returned it to the company and stamped the word \u2018cancelled\u2019 on the policy and application. We had an application from A. D. Kennedy & Co. for insurance on\u201d appellant\u2019s works. \u201c He (the clerk of LeMay & Co.) informed us at the time that the line of insurance had gone to their office. * * * He said that the line had gone to A. D. Kennedy & Co. and that they were winding up their account with\u201d appellant. * * * \u201c I figured the return premium at pro rata- * * * as a favor to LeMay & Co. * * * He said that the line would revert to Kennedy & Co. and they would call for the insurance. Our object in cancelling it when he told us Mr. Kennedy was coming for it, was because at that time we were not writing bicycle factories except as an accommodation. We didn\u2019t consider them a good risk and we were renewing no policies expiring and when we cancelled we did not rewrite. We cancelled tb;s policy at the request of LeMay & Co.\u201d\nThe clerk of LeMay & Co. who took the policy to the office of Holmes & Co. was not called as a witness by either side.\nNo notice of the cancellation of the policy was given by ' the appellee company to appellant." }, "file_name": "0631-01", "first_page_order": 649, "last_page_order": 656 }