Cases on Principal and Agent, and Master and Servant : Selected From

CASES ON AGENCY ‘ MASTER AND SERVANT PART I 1 THE RELATION CHAPTER I DEFINITION AND NATURE OF THE RELATION BLACKSTONE’S COMMENTARIES, BOOK I, CH. 14, I, 4. There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity, such as stewards, factors, and bailiffs, whom, howcver, the law considers as servants pro tempore, with regard to such of their acts as afiect their master's or employer’s property. ECHOLS v. STATE. (Supreme Court or Alabama, 1909. 158 Ala. 48, 48 South. 347.) From a conviction of embezzlement defendant appeals. SIMPSON, was of the _l. The appellant convicted offense of embez zlement; the afiidavit charging that he, “being an agent, servant, or clerk of afliant, embezzled or fraudulently converted to his own use money to about the amount of $18, or fraudulently secretes, with in tent to convert to his own use, or to the use of another, $18 in money which has come into his possession by virtue of his ofiice or employ ment.” The evidence for the state, in its strongest light against the Gonn.Pn.& A.(2n En.)—1 \ \ 2 THE RELATION (Part 1 defendant, is that the defendant, being a tailor, agreed to make a suit of clothes for the prosecutor for a certain amount of money, part of which was to be paid in cash and the remainder to be paid in the fu ture; that the prosecutor made the cash payment and demanded his suit of clothes; that defendant refused to deliver it without the pay ment of more money, and also refused to return his money. _ This court said, in discussing a former statute (which was identical with section 6831 of the Code of 1907, in so far as the point involved is concerned), that an agent is “one who undertakes to transact some business or to manage some affair for another, by the authority and on “ account of the latter, and to render an account of it"; also that ‘agent,’ as employed in this section, imports a principal, and implies employ ment, service, delegated authority to do something in the name and stead of the principal.” Pullam v. State, 78 Ala. 31,‘ 34-, 56 Am. Rep. 21. The relation of principal and agent did not exist between the prosecutor and the defendant, but the relation of seller and purchaser. The defendant did not undertake to do anything in the name and stead of the prosecutor. The money was not placed in his hands to be used or cared for, and accounted for to the prosecutor, but was paid to him in part -settlement for a suit of clothes, and thereby became the money of the defendant, to use as he pleased. Whatever other liability or penalty the defendant may have incurred, he could not be convicted of embezzlement on the facts of this case. Consequently the defend ant was entitled to the general charge, as requested and refused. The judgment of the court is"reversed,ii, and the cause remanded. STERNAMAN v. METROPOLITAN LIFE INS. CO. (Court of Appeals of New York. 1902. 170 N. Y. 13, 62 N. E. 763. 57 L. R. A. 318, S8 Am. St. Rep. 625.) Appeal from a judgment for defendant in an action upon a policy of insurance issued to plaintiff upon the life of her husband, George Sternamanf The contract provided that the application for the insur ance should becoine part of the contract of ‘insurance, and that the medical examiner, in writing in the answers of the applicant, was the agent of the latter and not of the company. Upon the death of the insured payment of the policy was refused, on the ground that some of the answers written in by the medical examiner were not true, and ' hence the policy was void. VANN. ].1 [After stating the factsz] The decision of this appeal turns substantially upon the following question: When an applicant for life insurance makes truthful answers to all questions asked by the 1 Part of the opinion is omitted. Gono.Pn.& A. (21) En.) I Ch. 1) DEFINITION AND NATURE or THE RELATION , 3 medical examiner, who fails to record them as given, and omits an important part, stating that it is unimportant, can the beneficiary show the answers actually given, in order to defeat a forfeiture claimed by the insurer on account of the falsity of the answers as recorded, even if it was agreed in the application that the medical examiner, employed and paid by the insurer only, should not be its agent, but solely the " agent of the insured? The power to contract is not unlimited. While, as a general rule, there is the utmost freedom of action in this regard, some restrictions are placed upon the right by legislation, by public policy, and by the nature of things. Parties cannot make a binding contract in violation of law or of public policy. They cannot in the same instrument agree that a thing exists, and that it does not exist, or provide that one is the agent of the other, and at the same time, and with reference to the same subject, that there is no relation of agency between them. They cannot bind themselves by agreeing that a loan in fact void for usury is not usurious, or that a copartnership which actually exists between them does not exist. They cannot by agreement change thelaws of nature or of logic, or create relations, physical, legal, or moral, which cannot be created. In,other words, they cannot accomplish the impos sible by contract. _ The parties to the policy in question could agree that the person who filled out part A of the application was the agent of the insured and not of the company. There is a difference in the nature of the work of filling out the blank to be signed by the insured, and that of filling out the blank furnished for the use of the medical examiner. The former is the work of the insured, and may be done as well by one person as by another. He may do it himself, or appoint an agent to do it for him. It is quite different, however, with the work of the medical examiner, because that requires professional skill and experience and the insurer permits it to be done only by its own appointee. The in sured can neither do that work himself, nor appoint a physician to do it, because the insurer very properly insists upon making the selection itself. The medical examiner was selected, employed, and paid by the company. The insured had nothing to do with him, except to submit to an examination by him, as the expert of the company, and to answer the questions asked by him in"behalf of the company. This he was forced to do in order to procure insurance; for the company required him to undergo a medical examination ‘by an examiner selected and it instructed by itself, before would act upon his application for a pol icy. He could neither refuse to be examined, nor select the exam iner, and he was not responsible if the latter was negligent or unfit for the duty assigned to him. He could not direct or control him, but the company could and did; for it required him to make the examination, fill out part B of the application blank, arid report_the facts with his opinion. The insured made no contract with the examiner, and was under no obligation to pay him for his services. The company, how 4 ~ run RELATION (Part 1 \ ever, made a contract with him to do cer-tain work for it, and agreed to pay him for the work when done. As between the examiner and the insured, the relation of principal and agent did not exist, while, as between the examiner and the com it pany, that relation did exist by operation of law; yet is claimed that, as between the insured and the company, the examiner was the agent of the former only, because he had so agreed, not with the ex aminer, but with the company itself. Under the circumstances, an agreement that the ‘physician was the agent of the insured was like an agreement that the company or its president was his agent. It was in contradiction of every act of the parties and of every fact known to either. The law, when applied to the facts, made the physician the agent of the company, and not of the insured; and can it be held that, as the insured agreed that the physician was his_agent, he became is such in spite of the law and the facts? This not a case of agency of one party for one purpose, and of another party for a different pur pose; for the ‘physician was employed for a single purpose only, and that was to make a physical examination of the insured, ask him the questions furnished by the company, record his answers, and report the result. They were not the questions of the insured, put to himself, to elicit facts for his use. He knew the facts. He did not need to question himself to find out what he knew, nor to employ an agent for that purpose. The questions were those of the company, carefully prepared for it by skillful hands, and furnished to its medical examiner to be asked, so that it could learn what the insured knew about him self. It needed the facts for its use, and “what was done by its own examiner to get the facts and report them to the company was its work, done for its benefit and in the course of its business.

Load more