Hanover Fire Ins. Co. v. Bradford

As this defendant was not notified to defend the action brought in the court of common pleas against the Hanover Fire Insurance Company on the policy of insurance, he was not concluded by the judgment there, and it was open to him here to show that the insurance company was not liable upon the policy. He has not, however, succeeded in doing this. The evidence establishes that Hoyt was much more than a mere clerk. In fact, he was the defendant’s subagent in the prosecution of the business of the Hanover Fire Insurance Company, the defendant’s prin-cipia!. Hoyt was authorized by the defendant to solicit insurance, to collect premiums, and to deliver policies, and these things he habitually did in the regular course oí his employment. ' Thus the defendant made Hovt the representative of the insurance company in the transaction of July 1, 1896. In delivering the Hanover policy of insurance on the Mayer pottery works, Hoyt was apparently acting with the scope of his authority. Under the circumstances the delivery of the policy by Hoyt had the same effect to bind the company as if it had been done by the defendant himself. These views are well supported by the authorities. Insurance Co. v. Eshelman, 30 Ohio St. 647, 657; Bodine v. Insurance Co., 51 N. Y. 117; Swan v. Insurance Co., 96 Pa. St. 37, 41, 42; McGonigle v. Insurance Co., 168 Pa. St. 1, 31 Atl. 875.

The risk was a prohibited one, within the defendant’s knowledge. It was taken in violation of the instructions he had received from *48his principal. In consequence, his principal has sustained injury. Who shall bear the loss? Now, even if the defendant be blameless personally, his employé is at fault. I cannot see, then, how the defendant can escape responsibilty for the hurtful act of his own agent, done within the apparent limits of his employment. I feel constrained to hold that the defendant’s case falls within the general rulé that the principal is responsible civiliter to third persons for the acts — even the tortious acts — of his agent, if done in the course of the agent’s employment, although the principal did not authorize the acts, or, indeed, may have forbidden them. Railroad Co. v. Derby, 14 How. 468, 480, 14 L. Ed. 468. The application of this rule to the case in hand may be placed upon the ground that, where one of two innocent persons must suffer from the wrongful act of a third person, the loss should be borne by him who put the wrongdoer in a position of trust and confidence, and thus enabled him to perpetrate the wrong. Accordingly, upon the facts and law of the case as above stated, the court finds in favor of the plaintiff, and assesses its damages at $2,803.87.