Sealey v. ALBANY INSURANCE COMPANY

117 S.E.2d 744 (1961)

253 N.C. 774

Howard F. SEALEY v. ALBANY INSURANCE COMPANY; Christine Bridgman Bullock, Administratrix of the Estate of Ralph Bullock; Emma Rhodes, Administratrix of the Estate of Guthrie Johnson Rhodes; Hubert Page; Elbert Hayes.

No. 740.

Supreme Court of North Carolina.

January 20, 1961.

*746 Sanford, Phillips, McCoy & Weaver, Fayetteville, for defendant Albany Insurance Co., appellant.

Hackett & Weinstein, Lumberton, for plaintiff, appellee.

Britt, Campbell & Britt, Lumberton, for defendant Christine Bridgman Bullock, Adm'x, appellee.

L. J. Britt & Son, Lumberton for defendant Emma Rhodes, Adm'x, appellee.

McLean & Stacy, Lumberton, for defendants Hubert Page and Elbert Hayes, appellees.

HIGGINS, Justice.

The plaintiff introduced the insurance policy which he alleged was issued and delivered to him for the appellant by "its authorized representative, C. G. Mauney." The policy provided for cancellation. Mr. Mauney offered to testify that no premium was ever paid and that for that reason he had authority to and did cancel the policy in the manner provided. When the court refused to admit the testimony, Mauney identified his contract with the appellant and offered to testify that he had been acting under it for three years; that he knew the signature of the officer who signed it. The court still refused to admit the contract which showed Mauney's authority to cancel. The evidence was sufficient to identify and authenticate the contract. It should have been admitted in evidence. If the court excluded the agent's oral testimony on the ground his authority was in writing, then the exclusion of the writing was certainly prejudicial.

We apprehend that in this instance counsel and the court gave undue heed to the well-recognized principle of law that agency and its extent may not be proved by the declarations and statements of the agent. The proposition is correct in a proper case. This is not such a case. "We know of no rule of evidence that does not allow an agent to go on the witness stand and testify that he is an agent. It is not a declaration, but the sworn evidence of a witness." New Home Sewing Machine Co. v. Seago, 128 N.C. 158, 38 S.E. 805, 807. "This is not a case of proving an agency by the declaration of the alleged agent, but by the testimony of an agent under oath." Hill v. Bean, 150 N.C. 436, 64 S.E. 212, 213. "It is a rule of universal application in this jurisdiction that agency cannot be proved by the mere declaration of the agent. * * Of course, the agent may testify under oath *747 as to the agency." State v. Lassiter, 191 N.C. 210, 131 S.E. 577, 579. "Proof of agency, as well as its nature and extent, may be made by the direct testimony, but not by the extrajudicial declarations, of the alleged agent." Jones v. Carolina Power & Light Co., 206 N.C. 862, 175 S.E. 167. "While proof of agency, as well as its nature and extent, may be made by the direct testimony of the alleged agent, * * * nevertheless it is well established that, as against the principal, evidence of declarations or statements of an alleged agent made out of court is not admissible either to prove the fact of agency or its nature and extent." Commercial Solvents, Inc. v. Johnson, 235 N.C. 237, 69 S.E.2d 716, 719.

In this case the appellant offered and the court excluded oral testimony of the witness Mauney as to his authority to cancel the insurance policy here involved. Likewise the court excluded the documentary evidence of the agent's authority after its identity and authenticity were established not only by the testimony, but by the stipulation of counsel after a copy had been furnished them as contemplated by G.S. § 8-91. For the court's error in excluding pertinent testimony on the issue of cancellation, there must be a

New trial.