Claim of Downs v. Del Regno , 37 A.D.2d 894 ( 1971 )

Appeal by Convenant Insurance Group from a decision of the Workmen’s Compensation Board filed June 11, 1970. The board found “that specific instructions subsequently to bind this risk were not given to Mr. Farrell and that even though he had power to bind Employers Liability as its agent, he could not bind Employers Liability while he was acting outside the scope of his authority and therefore, in this case, Employers Liability is not liable for the acts of its agent, Mr. Farrell ”. There was oral testimony which the Referee had excluded, but which was apparently accepted by the board, that the agent, Mr. Farrell, had been informed by the Employers Liability that it did not want to write the present risk and having refused to so write, the agent was no longer able to bind the said risk without the express permission of Employers Liability. An agency agreement was offered in evidence and from an examination thereof there was no such written restriction in the agreement. An afterthought is sometimes seized upon as a relevant issue to excuse the failure of a forethought. While private agreements between the agent and the insurance company are effective between themselves, we know of no authority which permits such agreement to overcome the apparent authority publicly accepted in the writing of insurance and not in contravention of the terms of a written agency agreement. It is noteworthy that the respondent in its brief fails to cite any decisions supporting its contention. The finding by the board that the agent was acting outside of the scope of his authority and, therefore, in this case Employers Liability was not liable for the act of its agent, fails to have support in this record, in fact or in law. Decision reversed, with costs against the Employers Liability Insurance Company, and matter remitted for further proceedings not inconsistent herewith. Herlihy, P. J., Reynolds, Aulisi, Staley, Jr. and Sweeney, JJ., concur.