DON KEMPER COMPANY, INC.

v.

BENEFICIAL STANDARD LIFE INSURANCE COMPANY, APPELLANT

Generally speaking a sales agent has no authority as such to subject his principal to liability for advertising costs. Eastern Advertising Co. v. Standard Nut Co., 264 Mass. 238, 162 N.E. 339 (Mass. 1928); United States Bedding Co. v. Andre, 105 Ark. 111, 150 S.W. 413, 41 L.R.A.,N.S., 1019 (Ark. 1912). This rule applies even more stringently to an insurance agent. As Couch on Insurance 2d Ed. §§ 26:339-340 puts it “An agent has authority to make incidental contracts or to do acts incidental to the performance of his duties as an agent. For example, the general agent of a foreign insurance company has implied authority to indorse checks made payable to the company for deposit or for transfer from one bank to another. * * * The agent of the insurer has no authority to bind the principal by contracts other than those related to insurance except to the extent set forth in the preceding section (above set out).”

Plaintiff’s second proposition is that defendant’s conduct led plaintiff to believe that Mrs. Hughes and National Abstainers Agency Inc. had authority to incur advertising expense on defendant’s behalf. The legitimately admissible evidence in this regard as we see it is negligible except for Exhibits P 13 and P 19 which, as above mentioned, we hold relevant and admissible. We do not pass upon the weight of that evidence but we hold that defendant is not entitled to the entry of judgment n.o.v. on this record. Plaintiff’s third contention is that if Mrs. Hughes was guilty of fraud in her alleged representations to plaintiff, she had apparent authority to incur the advertising expense in this matter for defendant through National Abstainers, Inc. This is in much the same situation as plaintiff’s second point.

In the light of the substantial error in the admission of evidence, we are satisfied that this judgment should be reversed and defendant granted a new trial on the merits. Because of the disorderly trial presentation there was some understandable confusion with respect to the charge. At the new trial the pertinent agency principles and the full relationship of defendant to Abstainers, Inc. and Mrs. Hughes need to be clearly and carefully given the jury.

The judgment of the District Court will be reversed and the cause remanded to said Court for a new trial on the merits. SUPPLEMENTAL OPINION.

PER CURIAM.

The only elements in this appeal which we considered needed rechecking by both sides were the thirty-three exhibits of plaintiff which were marked in evidence over defense objection. Both appellant and appellee still state that these are all dated after the Hughes hiring.

From our own examination in depth of these exhibits we find that in No. 17 there are twelve items, two of which are dated prior to the Hughes employment. Those two will therefore not be excluded from evidence because they are after the Hughes hiring. We do not pass upon their admissibility otherwise. The balance of the items are all after Hughes.

No. 41 consists of four items, two of which are dated prior to the Hughes employment. The latter two will not be excluded from evidence by the reason of being dated after the Hughes employment. We do not pass upon their admissibility otherwise. The other two items are undated and need further proof.

No. 42 is a single undated sheet. In the present state of the proofs this is not to be excluded from evidence as occurring after the Hughes hiring. We do not pass upon its admissibility otherwise.

No. 43 consists of seventeen sheets. Seven of these list names and have no date identification. These will not be excluded from evidence under the present proofs on the ground that they are of dates after the Hughes engagement. We do not pass upon their admissibility otherwise. The ten remaining items in this exhibit are copies of applications. Three of those are dated prior to Hughes. They will not be excluded under the present proofs as dated after Hughes. The other seven applications are all dated after Hughes. They will be excluded from evidence because of that fact.

No. 44 consists of three rejected applications, two of these are dated prior to Hughes. They are therefore not excluded as being of a later date. We do not pass upon their admissibility otherwise. The third item is dated after Hughes and will be excluded from evidence.

In line with the above, the language “thirty-three” in the first and second lines of the second full paragraph, page 756 of the said opinion is stricken and the language “twenty-eight” is inserted in place thereof. Other than the above changes made necessary by the inadvertence of counsel there are no changes in our original opinion filed October 25, 1968.