missible, because it is a mere expression of his opinion: Plymouth County Bank v. Gilman, 3 S. Dak. 170; 44 Am. St. Rep. 782, and note; Giberson v. Patterson Mills Co., 174 Pa. St. 369; 52 Am. St. Rep. 823, and note.

GOODE v. GEORGIA HOME INSURANCE COMPANY,

[92 VIRGINIA, 392.]

INSURANCE-CLERKS OF AGENTS.-An insurer is responsible for the acts of, and is affected by notice given to, the clerks and employés of his general agents, who are known to assist such general agents in the discharge of their duties.

INSURANCE-CLERKS OF AGENTS.-General agents of insurance corporations authorized to contract for risks, receive, and collect premiums, and deliver policies may confer upon a clerk or other subordinate authority to exercise the same powers.

INSURANCE-GENERAL AGENTS, WHO ARE.-One constituted the agent of an insurance corporation to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect by issuing and renewing policies, must be regarded as a general agent.

INSURANCE, WAIVER OF CONDITIONS.-If an insurer pleads as a defense that the plaintiff, in making out the application for insurance, falsely stated that there was no lien and no other Insurance on the property insured, the plaintiff should be permitted to prove that a clerk of a general agent of the insurer solicited the insurance, and was truly informed respecting the lien and the other insurance, and that it was by his advice that the applicant did not disclose these facts.

Assumpsit upon a policy of insurance.

Jeffries & White, for the plaintiffs in error.

Eppa Hunton, Jr., and W. W. & B. T. Crump, for the defendant in error.

892 BUCHANAN, J. Upon the trial of this cause, which is an action of assumpsit 393 upon a fire insurance policy, the court excluded from the jury certain evidence offered by the plaintiffs in error. The court also gave judgment in favor of the defendant upon its demurrer to the evidence.

The action of the court, both in excluding evidence and in giving judgment in favor of the defendant, is assigned as error in this court.

The propriety of the rulings of the court in refusing to allow the rejected evidence to go to the jury depends upon the question whether the defendant company was affected by the knowledge of certain material facts which came to the subagent, or employé of the agents, of the company, through whom the insurance was effected.

The defense relied on by the defendant was, that the plain

AM. ST. REP., VOL. LIII.-52

tiffs, in making out their application for insurance, had stated that there was no lien and no other insurance upon the property insured, when in fact there was a deed of trust upon it for three hundred and ninety dollars, and insurance in another company to the extent of twelve hundred dollars; and that by reason of these false statements the policy was void.

The plaintiff sought to show that Robert E. Harris, through whom their insurance was effected, had full knowledge of both the deed of trust and the other insurance upon the property, and that it was by his advice that their application did not disclose these facts, and that the defendant was estopped from relying on such facts to avoid the policy. The defendant denied that Robert E. Harris was its agent, or that it was affected by his knowledge.

The plaintiffs' evidence showed that Thomas B. Harris & Son were the agents of the defendant company for Culpeper and its vicinity, and that they were authorized "to receive proposals for insurance against loss or damage by fire, fix rates of premium, receive moneys, countersign, issue, and renew policies duly signed by the president and secretary, 394 and grant permission of transfer of policies on behalf of said company, subject to the rules and regulations of the company." It also tended to show that, whilst the plaintiffs were taking an inventory of their goods in order to have them insured, Robert E. Harris came to their store, "representing himself to be the son of T. B. Harris, of Culpeper, Virginia, who were the agents" both of the defendant company and the Virginia Fire and Marine Insurance Company; that this was the first time they had ever seen him; that after three trips to their store, soliciting their insurance, they insured their property in both of the companies; that their applications for insurance were signed "by the hand of Robert E. Harris, signing the firm name of Thomas B. Harris & Son, and that the measurement of the storehouse was made, and diagrams drawn, by him."

Thomas B. Harris was called by the plaintiffs, and testified that Robert E. Harris was his son, but was not a member of the firm of Thomas B. Harris & Son, and was not at any time the agent of the defendant; that the son who was a member of his firm was at Richmond College, Virginia, when the insurance of the plaintiffs was taken; that he often had more than one of his sons working for him in the insurance business; that Robert E. Harris had solicited a great deal of business for the firm of Thomas B. Harris & Son; that he (Robert) solicited, with his knowledge, the insurance of the plaintiffs, took the applications

therefor, and in pursuance thereof the two policies were issued through himself, T. B. Harris, as a member of the firm of Thomas B. Harris & Son, agents of the defendant, but that he had no knowledge of the facts and circumstances attending the soliciting and placing of the insurance, except what appeared in the application and policy of insurance, until after the loss occurred; that the special agent and adjuster of the defendant had frequently been in his insurance office at Culpeper, Virginia, and had there seen his several sons at work.

395 The trial court was of opinion that the evidence introduced by the plaintiffs did not show that Robert E. Harris occupied such a relation to the defendant company that it could be affected by knowledge acquired or declarations made by him whilst engaged in soliciting and taking the applications for the insurance in controversy, and refused to allow such evidence to go to the jury.

In this we are of opinion the trial court erred.

This question has been much discussed, but the better view now seems to be that the insurer is not only responsible for the acts of its general agents, but also for the acts of the clerks or employés of the agents, to whom they delegate authority to discharge their functions, within the scope of their agency.

Insurance companies know, or ought to know, when they appoint general agents, that, according to the ordinary course of business they have clerks and other persons to assist them, and that their agents in many instances could not transact the business intrusted to them if they were required to give their personal attention to all of its details. It being necessary, therefore, and according to the usual course of business, for their agents to employ others to aid them in doing the work, it is just and reasonable that insurance companies should be held responsible, not only for the acts of their agents, but also for the acts of their agents' employés, within the scope of the agents' authority.

It is no sufficient answer to this view to say that the insurers did not authorize their agents to delegate their authority to others. It may be that they did not do so expressly, but they appointed agents whom they knew, or ought to have known, would, according to the usages or the necessities of the business, engage the services of others in doing the work intrusted to them; and, having this knowledge, they will be held to have impliedly authorized their agents to do what was usual or necessary in the business.

396 The general rule, it is true, is that, when it is intended

that agents shall have power to delegate their authority, it should be given them by express terms; but there are cases in which such authority may be implied, as where it is indispen、 sable by the laws to accomplish the end, or it is the ordinary custom of trade, or it is understood by the parties to be the mode in which the particular business would or might be done: Story on Agency, 9th ed. sec. 14.

"Generally," says May, in his work on Insurance, "agents of insurance companies authorized to contract for risks, receive and collect premiums, and deliver policies, may confer upon a clerk, or subordinate, authority to exercise the same powers. The service is not of such a personal nature as to come under the maxim, Delegatus non potest delegare: 1 May on Insurance, 3d ed., sec. 154, 154 a.

Wood, in his work on Insurance, says: "Not only is the insurer responsible for the acts of its agent, but also for the acts of its agent's clerks, or any person to whom he delegates authority to discharge his functions for him. Of course, the act must be done by some person authorized expressly or impliedly by the agent, and under such circumstances that the insurer knew, or ought to have known, that other persons would be employed by and to act for the agent": 2 Wood on Insurance, 2d ed., sec. 433.

It was held in the case of Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117, 10 Am. Rep. 566, that an insurance agent can employ a clerk and authorize him to contract for risks, to deliver policies and renewals, to collect premiums, and to give credit therefor, and the act of the clerk in such cases is the act of the agent, and binds the company. In that case the clerk of the agent waived the prepayment of a premium, and the company was held bound by it, although there was a condition in the policy of insurance that no insurance, whether original or continued, should be considered as binding until the premium was actually paid.

397 In the case of Arff v. Star Fire Ins. Co., 125 N. Y. 57, 21 Am. St. Rep. 721, the court of appeals of New York, Judge Peckham delivering the opinion of the court, held that "an ordinary agent of a fire insurance company has the power to employ such clerks as may be necessary to discharge the usual business of his agency, and any waiver which the agent himself could make is to be attributed to him when made by his clerk."

In that case a policy of insurance issued by the company required the insured to notify the company of any other insurance upon the property, and declared the policy void in case of neglect to comply with that condition.

It also provided that "only such persons as shall hold the commission of this company shall be considered as its agents in any transaction relating to this insurance."

The plaintiff, having obtained other insurance on the property, informed the person upon whose solicitation he made the application for the policy, and he said it was all right. That person, at whose solicitation he applied for the policy, was employed to solicit insurance by a firm who were commissioned agents of the defendant company, having authority to give permits for further insurance. He had a desk in their office, and was paid for his services by a commission on the business he procured. He testified that he worked for no one except the defendant's agents. The plaintiff was nonsuited. The court held that to be error, and said that, if he was exclusively cmployed by the agents of the company, he was not an ordinary insurance broker, but one of the clerks or employés of the company's agents, and, as such, was authorized to receive notice and to consent to other insurance; and the testimony as to his exclusive employment being contradictory, the case should have been submitted to the jury.

In a later case decided by the same court, the two cases above referred to were cited with approval, and the doctrine 398 laid down in them reaffirmed. In the last case the policy of fire insurance in question contained a condition that if the insured were not the sole owners of the property insured, or did not have title to the land on which it was situated in fee simple, and this fact was not expressed in the policy, it should be void. The assured held the land under an agreement to purchase. This fact was not expressed in the policy, but had been communicated to the clerk of the general agent of the insurer, who had been sent to make an examination of the premises preparatory to the risk. In an action on the policy, it was held that notice to the subagent, while so engaged in soliciting the insurance, was notice to the company, and bound it to the same extent as though it had been given directly to the agent himself; and, this being so, the policy was not avoided by the condition in the policy: Carpenter v. German-American Ins. Co., 135 N. Y. 298. See Continental Ins. Co. v. Ruckman, 127 Ill. 364; 11 Am. St. Rep. 121; Hartford Fire Ins. Co. v. Josey, 6 Tex. Civ. App. 290; Duluth Nat. Bank v. Knoxville Fire Ins Co., 85 Tenn. 81; 4 Am. St. Rep. 744.

The authority conferred upon the firm of Thomas B. Harris & Son constituted them general agents of the defendant company, for it is settled that a person authorized to accept risks,