Home Ins. Co. of N.Y. v. Mobley

• Decision Date: 05 April 1916
• Docket Number: Case Number: 6339
• Citation: 57 Okla. 692,1916 OK 407,157 P. 324
• Court: Oklahoma Supreme Court
• Parties: HOME INS. CO. OF NEW YORK v. MOBLEY et al.

1916 OK 407

157 P. 324

57 Okla. 692

HOME INS. CO. OF NEW YORK v. MOBLEY et al.

Case Number: 6339

Supreme Court of Oklahoma

Decided: April 5, 1916

Syllabus

¶0 1. INSURANCE--Agents--Authority. Where a policy of fire insurance entered into by a foreign corporation is not valid until countersigned by the local agent, such agent will be held to be the officer having power to issue the same in view of section 3434, Rev. Laws 1910, even though the policy contained a provision providing that it should "not be valid until countersigned by the secretary or assistant secretary of the Western Farm Department at Chicago, Illinois."

2. SAME--Forfeiture--Waiver. Where an insurance company reinstates a policy which has been canceled, after knowledge of a breach of the policy prior to said reinstatement has been brought home to the local issuing agent, held, that the forfeiture is waived.

Error from District Court, Carter County; Stillwell H. Russell, Judge.

Action by Tennie Mobley and another against the Home Insurance Company of New York on a fire insurance policy. Judgment for plaintiffs and defendant brings error. Affirmed.

Burwell, Crockett & Johnson, for plaintiff in error.

Johnson & McGill, for defendants in error.

BURFORD, C.

¶1 The plaintiffs (designated as in the court below) sued upon an insurance policy for loss by fire. Defendant pleaded breaches of the policy: First, that plaintiffs were not fee-simple owners of the property insured; second, that after the policy was issued plaintiffs took out additional insurance; and, third, that after the policy was issued plaintiffs mortgaged the property. In reply plaintiffs pleaded notice of all these breaches to the defendant's agent, and waiver by conduct.

¶2 The grounds urged for reversal are: First, that the testimony showed that R. O. Dulaney, the agent, who issued the policy, was only a "soliciting" and not an "issuing" agent, and that therefore notice of these defects to him was not notice to the company; second, that even if the view be taken that Dulaney was an "issuing" agent, he could waive the conditions of the policy only in the manner prescribed therein, to wit, in writing indorsed on or attached to the policy; and, third, that even if Dulaney were an "issuing" agent and might waive conditions arising at the time the policy was written and delivered, after the issuance of the policy the insured became bound by notice of the terms, which were that waiver could be made only in writing and by the secretary or assistant secretary at Chicago.

¶3 In relation to the breach alleged with regard to the title we think the question of waiver by the agent is immaterial. The testimony tended to show that the owners of the lots upon which the building insured was built, desiring to get some buildings upon their town site as an advertisement and aid to the sale of other lots, had agreed with plaintiffs that if they would build a good structure upon the lots in question, the owners would convey them to plaintiffs without cost; that plaintiffs had complied with their part of the bargain, and at the time the insurance was issued were entitled to a deed. There was no dispute between plaintiffs and the record owners of the lot. Plaintiffs were and had been in possession; the deed had just not been issued. Under such conditions the plaintiffs had title sufficient to support the statements of their application and to comply with the ownership provision of the insurance contract. Arkansas Ins. Co. v. Cox, 21 Okla. 873, 98 P. 552, 20 L. R. A. (N. S.) 775, 129 Am. St. Rep. 808; Nance v. Oklahoma Fire Ins. Co., 31 Okla. 208, 120 P. 948, 38 L. R. A. (N. S.) 426; Des Moines Ins. Co. v. Moon, 33 Okla. 437, 439, 126 P. 753.

¶4 As to the second proposition, this court has always been careful to distinguish between the effect of the acts of mere soliciting agent--that is, an agent who has power only to solicit applications for insurance and forward them to some other officer by whom the policy is issued--and an "issuing" agent, who not only solicits the insurance, but accepts premiums and has power to determine the risk and issue the policy himself. The rule of Western Nat. Ins. Co. v. Marsh, 34 Okla. 414, 125 P. 1094, 42 L. R. A. (N. S.) 991, that an issuing agent may by his conduct bind his company to a waiver of conditions existing at the time the policy is issued in spite of a provision of the policy limiting his authority to waive conditions only in writing, has never by this court been extended to an agent whose only duty is to solicit, except as the soliciting agent acted strictly within the authority granted him. Phipps v. Union Mut. Ins. Co., 50 Okla. 135, 150 P. 1083; Modern Woodmen of America v. Weekley, 42 Okla. 25, 139 P. 1138. It therefore becomes important to ascertain the authority of the agent, Dulaney. He testified that he had no "farm" policies--such as the one in question--in his possession, and always forwarded the application to Chicago for action thereon. The policy contained these provisions:

"In witness Whereof the Home Insurance Company of New York has caused these presents to be signed by its president and attested by its secretary in the city of New York, but this policy or any indorsement thereon or attached thereto of any kind shall not be valid until countersigned by the secretary or the assistant secretary of the Western Farm Department at Chicago, Illinois, who alone shall have power or authority to waive or alter any of the terms or conditions of this policy, or to make or attach indorsements hereon."

¶5 Then follow the signatures of the president and secretary, and a place for the signature of the secretary of the Western Farm Department, and then appears the following:

"This policy is valid only when countersigned by R. O. Dulaney, agent at Cornish, Oklahoma."

¶6 In Rochester German Ins. Co. v. Rodenhouse, 36...