Mass. Bonding & Ins. Co. v. Vance
| Decision Date | 25 June 1918 |
| Docket Number | Case Number: 9042 |
| Citation | 1918 OK 372,74 Okla. 261,180 P. 693 |
| Parties | MASSACHUSETTS BONDING & INS. CO. v. VANCE. |
| Court | Oklahoma Supreme Court |
¶0 1. Insurance--Parol Insurance -- Validity --Statute.
Parol insurance, comprehending the subject of insurance, the time when the risk attaches and ends, the amount of indemnity, the parties, and the premium, contains all the elements essential to a binding contract of insurance, and is enforceable.
2. Principal and Agent--Appeal and Error --Agency--Extent of Authority--Question for Jury.
On the trial of a case, where the authority of an agent to bind his principal is made an issue by the pleadings, and where there is any competent evidence bearing upon the issue of agency and the extent of the authority of such agent, and the evidence thereon is conflicting, the issue as to such agency and the extent of his authority are questions to be determined by the jury under appropriate instructions, and its finding thereon will not be disturbed on appeal.
3. Attorney and Client--Power of Attorney --Compromise--Tender.
An attorney, who is employed to institute and prosecute a suit has no implied authority to make a compromise or settlement, or to receive a tender.
4. Estoppel--Contract--Retention of Benefits.
For the purpose of defeating liability, a party will not be heard to say he never made a contract, and, inconsistent with such assertion, retain the benefits flowing from the alleged transaction.
Error from District Court, Payne County; James B. Cullison, Assigned Judge.
Action by Ollie E. Vance against the Massachusetts Bonding & Insurance Company. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Affirmed.
P. D. Mitchell and Chas. B. Mills, for plaintiff in error.
Walter Mathews, for defendant in error.
¶1 In this opinion the plaintiff in error will be referred to as the company, and the defendant in error will be referred to as the insured. This action was commenced in the district court of Payne county, Okla., by the insured, to recover $ 3,600 upon a parol contract of insurance.
¶2 In the petition filed in this case it is alleged: That on the 19th day of August, 1915, E. Evans was the agent of the company, and had authority to solicit and enter into contracts of insurance against accidents or injury, which would bind the company for the payment of the amount agreed upon in event accident or injury intervened during the life of the insured. That on the 19th day of August, 1915, the insured, being a pipe line constructor by occupation entered into a parol contract of insurance with the company, through its said agent, E. Evans, at Cushing, Okla., whereby the company agreed to indemnify the insured against the effects of injury resulting from accidental means which would prevent him from pursuing his occupation, or a similar occupation, should such injury be received prior to the 1st day of October, 1915, by paying the insured the sum of $ 3,600, should the injury disable him from pursuing his occupation for a period of five years or longer, or, in event the injury disabled him from pursuing such occupation for less than five years, the company should pay the insured the sum of $ 60 per month during the time of his disability. That as a consideration for the indemnity against injury to the insured he paid the company the sum of $ 5.30 as reward or premium for such indemnity, and which should extend from and including the 19th day of August, 1915, up to the 1st day of October of that year. The petition further alleges that on the 21st day of August, 1915, while the insured was pursuing his occupation, he was accidentally injured, which resulted in the permanent loss of his right arm.
¶3 To this petition the company interposed a general demurrer, which was presented to the court and overruled, and exceptions saved. The company then filed an answer, in which it is denied that E. Evans was the agent of the company, having authority to enter into contracts of insurance, as alleged and set forth in the petition, and further denying that any such contract of insurance was ever made, and in the answer it is affirmatively alleged that on the 19th day of August, 1915, the insured made an application to the company upon its regular printed form of applications for a policy of accident insurance, to begin at noon on the date of the policy to be issued by the company in pursuance to the application, and that in said application, and as a part and parcel of the same, there was contained the following stipulation and agreement:
¶4 It is further alleged in the answer on the 19th day of August, 1915, the application was mailed to the company from Cushing, Okla, to a branch office at Saginaw, Mich.; that the policy to be issued in pursuance to the application was a home office policy, and that the home office alone had authority to issue policies and enter into insurance contracts; that upon receipt of the application at the branch office at Saginaw, Mich., it was discovered that a mistake as to the occupation of the insured had been made in the application, and the same was returned to Cushing, Okla., for the purpose of procuring a correction of the mistake, and that said application was destroyed and a new one was made and forwarded to the home office; and that in pursuance thereof a policy was issued on the 26th day of August, 1915, which contained the provision that said policy should be null and void, unless delivered to the insured while he was in good health and uninjured.
¶5 To the answer the insured filed a verified reply, in which he specifically denies that he signed the application as alleged and set forth in the answer, and denies specifically that he ever signed but one application and denied that the application he signed on the 19th day of August, 1915, contained the provision set forth in the answer, and denies specifically that the application he signed contained a mistake as to his occupation, and specifically denies that the policy was ever delivered to him as alleged and set forth in the answer. And the reply reiterates the allegations of the petition, the receipt of the premium, and retention thereof by the insured, and other facts constituting estoppel and waiver by the insured to deny the contract which he alleges was made.
¶6 The case was tried to the court and jury at the May, 1916, term, in Payne county, Okla., and the jury returned a verdict in favor of the insured for the full sum of $ 3,600. In due time a motion for a new trial was filed and presented to the court, which was overruled and denied, and exception saved and the case is now properly before this court for review.
¶7 The first question presented for the consideration of this court is the contention of the company that the petition did not state facts sufficient to constitute a cause of action, for the facts therein alleged are against the plain commands of the statutory law of this state and against the policy of the law. The precise question here presented involves the validity of a parol contract of insurance. The origin of insurance is wrapped in the obscurity of the past to such an extent that an examination of the most learned authors upon this subject leaves one in doubt as to its true origin. Some of the authors contend that insurance was known to and practiced by the ancients, still others contend that it had its origin during the days of the Roman republic, and still others contend that it had its inception in the necessities of maritime commerce, and the risks and hazards consequent upon it. While we may not be able to trace to a definite source the invention of insurance, we know that it was practiced in various forms down through the ages and in almost all forms of human activity, and did not need to be in any particular form, so long as it embodied all the elements of an enforceable contract, until it became more modernized in the twelfth century, when written contracts or policies of insurance first made their appearance among the merchants in Northern Italy. Insurance had its origin in the necessity of commerce, and has expanded with its progress and facilitated itself to the wants and needs of an advancing civilization, and has been extended into every field of human endeavor, protecting all forms of commerce, agriculture, and life. Wherever danger is apprehended or protection required, it holds out its fostering hand and promises indemnity. This is the principle that underlies the contract, and it can never, without violation to its true spirit and intent, be made by the insured a source of profit; its sole aim being to protect against loss, damage, or injury.
¶8 Much doubt and uncertainty regarding the precise question here presented seems to have at one time existed among the courts and text-writers upon this important subject, which led to a riot of confusions in the decisions of courts of last resort, and text-writers as well. This question first came before the Supreme Court of the state of Missouri in the case of Henning v. United States Ins. Co., 47 Mo. 425, 4 Am. Rep. 332, and Justice Wagner, delivering the...
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