NISBET ET AL v. RHINEHART

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District Court of Appeal, Third District, California.

NISBET ET AL. v. RHINEHART.*

Civ. 4996.

Decided: February 17, 1934

Edward G. Benard, of San Francisco, for appellant. Dennett & Zion, of Modesto, for respondents.

The defendant has appealed from a judgment which was rendered for premiums due upon insurance policies. The complaint fails to allege that the plaintiffs acted as agents for the insurance companies, or that they sold the policies as independent brokers. A general demurrer to the complaint was overruled. Defendant's motion for judgment on the pleadings was also overruled. On appeal it is claimed the complaint fails to state a cause of action authorizing the plaintiffs to sue in their individual names for premiums due to the companies.

The cause was tried by the court sitting without a jury. The court found that the policies were solicited for the defendant and sold by the plaintiffs as independent brokers, and that they therefore had a right to maintain the action in their own names, that they had no contract with the insurance companies involved, and that the premiums were due to plaintiffs. A judgment was rendered accordingly against the defendant. From this judgment an appeal was perfected.

The complaint was drawn in three counts. Each count alleges a separate amount of premium to be due from the defendant to the plaintiffs upon separate policies with different companies.

The language employed in the first count is as follows: “That within one year last past the said plaintiffs sold and delivered to the said defendant a policy of insurance of the Independence Indemnity Company for automobile insurance, and that the premium on said policy of insurance extended from October 26, 1932, to December 19, 1932, and that the amount of the premium is the sum of $231.96, which said sum has not been paid or any part thereof and which defendant has refused to pay, and which is now due and payable from said defendant to said plaintiffs.”

The complaint fails to state the capacity in which the plaintiffs acted in procuring the sales of the insurance policies. Each of the other counts is couched in the same language. The demurrer was general, merely stating that the complaint fails to state a cause of action against the defendant. It failed to assign as a cause of demurrer that plaintiffs lacked legal capacity to sue, or that it was uncertain for any reason. The complaint did allege that the premiums were due and owing to the plaintiffs.

In the absence of a special demurrer pointing out the alleged defect, we are of the opinion the complaint stated a good cause of action for money due and owing to the plaintiffs. The appeal was taken on a bill of exceptions which does not include the evidence which was taken at the trial. The evidence is not before us. On appeal every presumption is in favor of the judgment. For the purpose of supporting the judgment, we may assume that the policies contained provisions making the insurance brokers personally liable to the companies for the premiums due upon contracts sold by them. The court does specifically find that: “The plaintiffs were insurance brokers; that as such insurance brokers the plaintiffs secured a policy of automobile insurance for the defendant.” This finding will support the theory that plaintiffs acted as the agents of the defendant in procuring the insurance, or that they acted as independent insurance brokers.

Section 633a of the Political Code (as amended by St. 1931, p. 574) defines an insurance broker as follows: “An insurance broker is an individual, copartnership, association, or corporation that for compensation and on behalf of another party solicits, negotiates, or effects contracts of surety, indemnity, or insurance other than life with, but without authority to perform such acts on behalf of, any properly qualified insurance or surety company or association. An insurance agent may be a broker with relation to companies or associations for which he is not an authorized agent, but in order to act as a broker he must also be licensed as such.”

Pursuant to the foregoing definition of an insurance broker, it is apparent that, in the absence of restrictions in the contract which is involved, the plaintiffs were authorized to solicit the policies as the agents of the defendant, in which event they may be liable to the insurance companies for the payment of the premiums. Indeed, the court specifically found that the plaintiffs had no contract with any of the insurance companies. Since it was also found that the premiums were due and unpaid, it may not be said there was a miscarriage of justice in rendering judgment against the defendant.

Under the provisions of article 6, section 4 1/2, of the Constitution of California, even though it may be held that the general demurrer in this case should have been sustained, the judgment will not be reversed, for the reason that we must assume, in the absence of the evidence, that the findings are fully supported by the record and that there is no miscarriage of justice.

The judgment is affirmed.

Mr. Justice R. L. THOMPSON delivered the opinion of the court.

We concur: PULLEN, P. J.; PLUMMER, J.