Henning v. The American Insurance Company
| Decision Date | 08 January 1921 |
| Docket Number | 22,827 |
| Parties | SAMUEL HENNING, Appellee, v. THE AMERICAN INSURANCE COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1921
Appeal from Bourbon district court; EDWARD C. GATES, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
INSURANCE--Authority of Local Agent to Waive Conditions of Policy--Evidence. A finding that a local agent of an insurance company was a general agent having authority to waive a provision against encumbrances is not sustained by evidence that the policy was by its terms required to be countersigned by him before becoming effective, and was so countersigned; that he collected and remitted premiums, received and transmitted to the company information as to the loss, and helped to take proof thereof; and that he stated to the insured at the time the application for insurance was made that he was the general agent.
John L Connolly, and Harry Warren, both of Fort Scott, for the appellant.
J. I. Sheppard, and James G. Sheppard, both of Fort Scott, for the appellee.
Samuel Henning recovered a judgment against the American Insurance Company upon a fire insurance policy and the defendant appeals.
The policy covered both chattels and realty and contained provisions that if any of the property should be mortgaged or encumbered without the consent of the western manager of the company being indorsed thereon the entire policy should be null and void, and that no agent of the company except the western manager, in writing, should have power to waive or alter any of the terms of the contract. The plaintiff concedes that a mortgage for $ 500 was placed on the real property after the policy had been issued, but contends that a waiver of the consequent forfeiture resulted from the fact that one of the firm comprising the defendant's agency at Fort Scott through which the insurance had been obtained knew of the making of the mortgage and not only made no objection but affirmatively countenanced the act. The case turns upon whether a finding was warranted that such agent was authorized to waive the condition regarding encumbrance; and this in turn depends upon whether there was any evidence that he was a general agent.
A written certificate issued by the company in 1907 appointing the partners referred to as its agents gave them authority only "to receive and transmit to the company...
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