Allen v. Phoenix Assurance Co.

• Decision Date: 06 May 1908
• Citation: 14 Idaho 728,95 P. 829
• Court: Idaho Supreme Court
• Parties: GEORGE L. ALLEN and LEWIS G. SANDERS, Under the Firm Name of SANDERS & ALLEN, Respondents, v. PHOENIX ASSURANCE COMPANY, a Corporation, Appellant

95 P. 829

14 Idaho 728

GEORGE L. ALLEN and LEWIS G. SANDERS, Under the Firm Name of SANDERS & ALLEN, Respondents, v. PHOENIX ASSURANCE COMPANY, a Corporation, Appellant

Supreme Court of Idaho

May 6, 1908

FIRE INSURANCE-APPLICATION FOR INSURANCE-KNOWLEDGE OF AGENT-WAIVER OF CONDITIONS IN POLICY-CONDITION LIMITING AUTHORITY OF AGENT.

1. Where an insurance company accepts an application for insurance, and acts upon it, and writes a policy based upon the information contained therein, it is bound by such application and information, and cannot avoid the effect of the same upon the ground that it is a rule of the company not to receive or accept applications.

2. Where an insurance company receives an application for insurance, and writes and delivers a policy by reason thereof, and does not advise the insured that it does not receive applications, or that the application was defective or insufficient, the company will not be permitted to repudiate or disregard the application or the effect thereof.

3. The issuance of a policy of insurance upon a written application is a waiver of all matters of form or completeness of answer to all questions contained in said application.

4. An insured, receiving a policy of insurance in response to a written application therefor, in which questions are asked and answers given, has a right to presume that the policy is in accord with the application, and that the answers and disclosures made in the application are sufficient to authorize the company to issue the policy, and the applicant is not required to return the policy because of conditions in it which might seem in conflict with the application.

5. An agent of an insurance company who solicits insurance, takes the application, receives the premium and delivers the policy, for these purposes at least, is the agent of the company with full power to act with reference thereto; and if he writes down false state- ments after he has been truthfully informed, and after personal inspection of the premises, the information and knowledge of such agent will be imputed to the company.

6. Where an agent has authority to receive an application for insurance, and has filled in the same and forwarded it to the company, which has accepted the same and issued a policy thereon and received the premium therefor, the company will be estopped from denying the sufficiency of the answers to questions in the application.

7. An insurance company which accepts an application from one acting as soliciting agent, and receives the premium for the policy through said agent, and writes a policy by reason of such application and the payment of such premium, thereby makes such person its agent for the purpose of receiving applications for insurance, and is bound by the acts of such agent; and his knowledge, while acting within the scope of his said authority, is the knowledge of the company.

8. A provision in a policy that "In any matter relating to this insurance no person, unless duly authorized in writing shall be deemed the agent of this company" is waived by the company accepting an application from one who is not authorized in writing as the agent, and writing and delivering a policy upon said application and receiving and retaining the premium therefor.

9. Where a policy of insurance is delivered and accepted by the insured, it thereby becomes a contract between the parties but its terms and conditions may be waived and modified by the application, and the acts of the parties with reference thereto.

10. Where an application for insurance contains certain answers to questions propounded and the omission to answer other questions, and the policy is written, based upon that application, which is the only information the insurer has such application becomes a part of the contract of insurance and the insurer is bound by the provisions and conditions of such application to the same extent and with like effect as the insured by the terms and conditions of the policy.

11. Whatever knowledge an adjuster obtains within the scope of his authority as adjuster, with reference to a breach of conditions precedent, will be imputed to the company, and the recognition by the company of the validity of the contract of insurance, after such knowledge is obtained, and a retention of the premium without offer to return it, amounts to a waiver of such breach of conditions.

12. A provision in a policy of insurance to the effect that a waiver, to be effectual, must be indorsed in writing by an agent who has the authority to do so, is for the benefit of the insurer, and, like other conditions, may be waived or changed by the company.

13. Oral testimony may be introduced to prove a waiver of a condition in an insurance policy.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action on a fire insurance policy. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Casts awarded to respondents.

James E. Babb, for Appellant.

Notice to a mere soliciting agent without authority to sign and deliver the contract is not notice to the company, especially where not communicated, and such an agent cannot bind the company contrary to express provisions in the policy. (Wilson v. Conway F. Ins. Co., 4 R. I. 141; Tebbetts v. Hamilton Mut. Ins. Co., 3 Allen, 569; Knudson v. Grand Council of New Legion of Honor, 7 S.D. 214, 63 N.W. 911; Home Friendly Society v. Berry, 94 Ga. 606, 21 S.E. 583; Vose v. Eagle Life & H. Ins. Co., 6 Cush. 42; Liverpool & G. Ins. Co. v. Van Os, 63 Miss. 431, 56 Am. Rep. 810; Shimp v. Cedar Rapids Ins. Co., 26 Ill.App. 254; Galbraith's Admr. v. Arlington M. L. Ins. Co., 12 Bush (Ky.), 29; Kings Co. Ins. Co. v. Swigert, 11 Ill.App. 590; Phoenix Ins. Co. v. Spiers, 87 Ky. 285, 8 S.W. 453; McGrath v. Home Ins. Co., 84 N.Y.S. 374, 88 A.D. 153; Northern Assur. Co. v. Grandview Bldg. Assn., 183 U.S. 308, 22 S.Ct. 133, 46 L.Ed. 213; Deming Investment Co. v. Shawnee Fire Ins. Co., 16 Okla. 1, 83 P. 918, 4 L. R. A., N. S., 607; Pennsylvania Casualty Co. v. Bacon, 133 F. 907, 67 C. C. A. 497; Atlas Reduction Co. v. New Zealand Ins. Co., 138 F. 497, 71 C. C. A. 21; Billings v. National Ins. Co., 6 Ohio C. C., N. S., 567; Gillum & Co. v. Fire Assn., 106 Mo.App. 673, 80 S.W. 283; German Ins. Co. v. Allen, 69 Kan. 729, 77 P. 529; Meigs v. London Assur. Co., 126 F. 781; Martin v. Ins. Co. of North America, 57 N.J.L. 623, 31 A. 213; Fries-Breslin Co. v. Starr Fire Ins. Co., 154 F. 35; Clemments v. German Ins. Co., 153 F. 237; Deming Inv. Co. v. Shawnee Fire Ins. Co., 16 Okla. 1, 83 P. 918, 4 L. R. A., N. S., 607; Gish v. Ins. Co., 16 Okla. 59, 87 P. 869; Conn. Fire Ins. Co. v. Buchannan, 141 F. 877; Lefler v. New York Life Ins. Co., 143 F. 814; Kentucky Vermillion M. & C. Co. v. Norwich Union Fire Ins. Co., 146 F. 695; Bowditch v. Norwich Union Fire Ins. Co., 193 Mass. 565, 79 N.E. 788; Greenwich Ins. Co. v. Dougherty, 64 N.J.L. 716, 42 A. 485, 46 A. 1099; Kelsey v. Con. Casualty Co., 131 Iowa 207, 108 N.W. 221, 8 L. R. A., N. S., 1014; Ferguson v. Lumberman's Ins. Co. (Wash.), 88 P. 128; Murphy v. Russell & Co., 8 Idaho 143, 67 P. 421; Iverson v. Metropolitan Life Ins. Co., 151 Cal. 746, 91 P. 609.)

In case of conflict between an application for insurance and the policy, the latter controls. (Harr v. Highland Nobles (Neb.), 110 N.W. 713; Goodwin v. Provident Sav. L. Assur. Soc., 97 Iowa 226, 59 Am. St. Rep. 411, 66 N.W. 157, 32 L. R. A. 473; Ogletree v. Hutchinson, 126 Ga. 454, 55 S.E. 179; Costello v. Grant County Mut. F. & Ltg. Ins. Co. (Wis.), 113 N.W. 639, and cases cited; La Campania Bilbaina DeNavegacion v. Spanish-Am. L. & P. Co., 146 U.S. 483, 13 S.Ct. 142, 147, 36 L.Ed. 1054; Myers v. Ins. Co., 27 Pa. 268, 67 Am. Dec. 462; Lawson on Presumptive Ev., Rule 70, p. 303; Accident Ins. Co. v. Crandal, 120 U.S. 527, 7 S.Ct. 685, 30 L.Ed. 740--last half next to last paragraph. Same case, 27 F. 45--latter part next last paragraph.)

In every realm of the doctrine of contracts, what has been spoken in the making of the contract must be regarded and have life and efficacy; the doctrines of implication, construction, waiver and estoppel have no office or function in opposition to express statements and declarations inconsistent therewith. (Tiedeman on Sales of Personal Prop. , sec. 182; Washburn on Real Property, 6th ed., sec. 2406; 29 Am. & Eng. Ency. of Law, 2d ed., 1095.)

An intent to waive cannot be inferred from the mere fact of knowledge, in the face of an express stipulation of the contract made and delivered subsequent to such knowledge. (United Firemen's Ins. Co. v. Thomas, 82 F. 406, 27 C. C. A. 42, 47 L. R. A. 450.)

Daniel Needham, for Respondents.

Knowledge by the agent issuing the policy or renewing it and receiving the premium of facts constituting a breach of any of its conditions, is a waiver by him and by the company of the condition so known to be broken. (New England Fire & M Ins. Co. v. Schettler, 38 Ill. 166; Peoria Marine and Fire Ins. Co. v. Hall, 12 Mich. 214; Campbell v. Merchants' & Farmers' M. Fire Ins. Co., 37 N.H. 35, 72 Am. Dec. 324; Marshall v. Columbia Mut. Fire Ins. Co., 27 N.H. 157; Master v. Madison Co. Ins. Co., 11 Barb. 624; Exchange Bank v. Thuringia Ins. Co., 109 Mo.App. 654, 83 S.W. 534; Ehrlich v. Ins. Co., 88 Mo. 249; O'Key v. State Ins. Co., 29 Mo.App. 105; Stiepel v. German-American Ins. Co., 55 Mo.App. 224; McBride v. Republic Fire Ins. Co., 30 Wis. 562; Bellevue Roller Mill Co. v. London & L. F. Ins. Co., 4 Idaho 307, 39 P. 196; Campbell v. American Fire Ins. Co., 73 Wis. 100, 40 N.W. 661; Farnum v. Phoenix Ins. Co., 83 Cal. 246, 17 Am. St. Rep. 233, 23 P. 869; Long Island Ins. Co. v. Great Western Mfg. Co., 2 Kan. App. 377, 42 P. 739; ...