: COLONIAL MUTUAL LIFE ASSURANCE 1 Pie 820% v SOCIETY LIMITED mais

: COLONIAL MUTUAL LIFE ASSURANCE 1 Pie 820% v SOCIETY LIMITED mais - [1931] HCA 53 - HCA 1931 case summary — Zoe

[12]

without express written authority signed by the Resident Secretary. (2) That the agent will pay in full to the Society all moneys received by him on its behalf within forty-eight hours of receipt, and will render a detailed statement of such receipts. (3) That the agent will never pay a premium (or portion of a premium) for a policy-holder except that policy-holder be a member of his own family. (4) That any advances made to the agent at any time against commissions to be earned, constitute a debt by the agent to the Society which the Society may call upon him to pay at any time, and which the agent undertakes to pay when called upon so to do. (5) That all deferred commissions or bonuses or other remuneration hereinafter agreed to be paid by the Society to the agent shall cease to be payable immediately on this agreement being terminated from any cause whatsoever. (6) That all moneys due under this agreement are payable in the capital city of the State or Dominion in which the agent is located. That no suit at law or in equity against the Society relating to this agreement shall be maintainable until fourteen days have expired after service on the Resident Secretary of the Society for such State or Dominion of a written statement giving particulars and amount of claim against the Society. (7) That the duties of the agent under this agreement may be performed either by his clerks or servants or by himself personally, and nothing herein shall be construed to prevent the agent from engaging in any other business or occupation during the continuance of his agency, provided that during the continuance of the agency the agent shall not directly or indirectly act for any other life assurance or accident insurance society or company. (8) That this agreement, or any part thereof, may be terminated by either party giving seven days' notice in writing. And these articles further witness that in pursuance of this agreement, and in consideration of the covenants on the part of the agent hereinbefore contained, the Society doth hereby covenant and agree to pay to the agent such sum or sums to which he may be from time to time entitled in accordance with the scales of commission on back hereof, on proposals bearing his signature as introducing agent, such payment to be held to include and cover all charges and expenses for postage, or any other account whatever." On the back of the agreement were set out the scales

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capacity. In this very case the "agent" has authority to obtain proposals for and on behalf of the appellant ; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose. This does not mean that he may conclude a contract of insurance which binds the Company. It may be, and probably is, outside his province to go beyond soliciting and obtaining proposals and receiving premiums; but I think that in performing these services for the Company, he does not act independently, but as a representative of the Company, which accordingly must be considered as itself conducting the negotiation in his person. The rule which imposes liability upon a master for the wrongs of his servant committed in the course of his employment is commonly regarded as part of the law of agency: indeed, in our case-law the terms principal and agent are employed more often than not although the matter in hand arises upon the relation of master and servant. But there is, I believe, no case which distinctly decides that a principal is liable generally for wrongful acts which he did not directly authorize, committed in the course of carrying out his agency by an agent who is not the principal's servant or partner, except, perhaps, in some special relations, such as solicitor and client, and then within limitations. A learned writer who is disposed to impugn the course that authority has taken in widening the liability for the wrongs of others, concludes a discussion of the responsibility arising from agency with the statement : - " Principals have been held liable in cases substantially of contract. Principals have been held liable in cases of tort where the agent was also a servant. Principals have been held liable for the wrongs of their agents which they told them to commit. But, fortunately, there seems to be no occasion in which a mere agent has been held to have had ' implied authority * to commit wrongs or to be negligent. The danger that such a proposition may be laid down is nevertheless imminent " (Dr. Baty, Vicarious Liability, at p.44,a work criticized by Sir F. Pollock, 32 Law Quarterly Review (1916), p. 226. See also Salmond, Law of Torts, 7th ed., ch. m., sec. 26, par.1; Holmes, Common Law, pp. 229-233, and Collected Legal Papers, sub "' Agency," at pp. 101-109).

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includes that act within its scope, the appellant would be liable for the publication by Ridley of the slanders, which he has been proved to have published, if that act were done in exercising the authority with which Ridley was entrusted by the appellant. The fact that it was an abuse of that authority would not relieve the appellant of liability. What was that authority? It was not, of course, to do everything which the appellant itself could do or might have authorized to be done in its name. It was a limited authority. The effect of the agreement, in my opinion, was that Ridley became the agent of the appellant, by whom it would find persons who wanted to insure with it, and by whom the appellant would solicit persons to become willing to insure with it and would obtain proposals from such persons for acceptance or rejection by the appellant. It follows that Ridley would be acting within the scope of his authority, for example, when, in search of proponents for insurance, he spoke to people of the appellant Company, its business and its policies. He would be acting in the course of that authority if he made any false statement about those matters or said anything concerning them, which he was not expressly authorized to say or was forbidden to say. But I do not agree in the view that in defaming the respon- dent he was exercising the authority which he held as the representa- tive of the appellant. To hold that a person in the position of Ridley was acting in the course of the authority with which he was entrusted by the appellant when he published any one of the slanders, which the learned Judge found, would involve the result that a person authorized by an insurance company to obtain business for it, has authority to persuade persons from whom he is seeking proposals for insurance to make them by criticizing the soundness of any other insurance company. In my view such an agent has authority to rely upon the merits of the company which he represents, but has no authority to criticize any other company for the purpose of obtaining business for his own company. There is nothing in the agreement which leads me to the conclusion that the criticism of any other company was a function pertaining to the canvasser Ridley, as the representative of the appellant. Speaking of the scope of the authority of the tax collector for whose slanders it was sought to make the corporation liable, Lord Shaw of Dunfermline

At a glance

Court

Decision date

Before

Source

Judgment (188 paragraphs)

Parties

Cited By (19)