Muncey v. Security Ins. Co.

• Decision Date: 17 January 1927
• Citation: 43 Idaho 441,252 P. 870
• Parties: ROBERT H. MUNCEY and ANGELINE MUNCEY, His Wife, Appellants, v. SECURITY INSURANCE COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

252 P. 870

43 Idaho 441

ROBERT H. MUNCEY and ANGELINE MUNCEY, His Wife, Appellants, v. SECURITY INSURANCE COMPANY, a Corporation, Respondent

Supreme Court of Idaho

January 17, 1927

INSURANCE-INSURANCE AGENT AS APPLICANT-LIABILITY OF COMPANY-ACCEPTANCE WITH KNOWLEDGE OF RISK-MOTION FOR NONSUIT-WAIVER-MOTION NOT WAIVED BY CROSS-EXAMINATION.

1. Where an insurance agent himself is an applicant for insurance, the company is not bound or obligated, unless being fully informed of facts, company accepts risk.

2. In action on fire policy written by agent on his own property offer of proof, showing only that insurer had asked for and desired all of agent's insurance, was properly rejected in that it failed to show insurer had accepted risk.

3. In action on fire policy written by agent on his own property nonsuit was properly entered, in absence of proof that policy was accepted by insurer with knowledge of risk.

4. When motion for nonsuit is made at close of plaintiff's evidence and is denied and defendant thereafter submits evidence in support of defense, motion for nonsuit is waived unless renewed at close of all evidence.

5. Defendant's motion for nonsuit, made at close of all evidence in plaintiff's case, was not waived by reason of cross-examining plaintiff's witness, whether or not it thereby obtained evidence for itself.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Chas. L. Heitman, Judge.

Action to recover on policy of insurance. Judgment for respondent. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

Lynn W. Culp, for Appellants.

Where an agent writes a policy covering his own property, his act is not void but merely voidable. (12 Ann. Cas. 95, 96.)

The evidence and the offer of proof shows, not only that the appellants were assured by the respondent that the policy in question would be accepted, but that the business was actually solicited by the state agent of the insurer. (Arispe Mercantile Co. v. Queen Ins. Co., 141 Iowa 607, 133 Am. St. 180, 120 N.W. 122; Citizens' State Bank v. Shawnee Fire Ins. Co., 91 Kan. 18, 137 P. 78, 49 L. R. A., N. S., 972.)

Four days after it claims it rejected the policy, the company forwarded to the insured blanks for full reports on the loss. This amounts to a ratification, and if this were all, would be sufficient to bind the respondent. (22 Cyc. 1435 (in note 21).)

Bert A. Reed and Ezra R. Whitla, for Respondent.

"In an action to recover on an insurance policy, the plaintiff must plead and prove the performance of all conditions precedent, or a waiver by the insurer." (Shawnee Fire Ins. Co. v. Knerr, 72 Kan. 385, 83 P. 611; St. Paul Fire & Marine Ins. Co. v. Mittendorf, 24 Okla. 651, 104 P. 354, 28 L. R. A., N. S., 651.)

"A ratification of the unauthorized acts of an agent in order to be effectual and binding on the principal must have been made with a full knowledge of all the material facts surrounding the transaction." (Naylor Co. v. Bowman, 39 Idaho 764, 230 P. 347.)

"An agent of an insurance company cannot act as such in insuring his own property; and, where he writes a policy on his own property, it must be approved by the company before it constitutes a contract." (Zimmermann v. Dwelling-House Ins. Co., 110 Mich. 399, 68 N.W. 215, 33 L. R. A. 698; Wildberger v. Hartford Fire Ins. Co., 72 Miss. 338, 48 Am. St. 558, 17 So. 282, 28 L. R. A. 220; British-American Assur. Co. v. Cooper, 6 Colo. App. 25, 40 P. 147; Ramspeck v. Pattillo, 104 Ga. 772, 69 Am. St. 197, 30 S.E. 962, 42 L. R. A. 197; Salene v. Queen City Fire Ins. Co., 59 Ore. 297, 116 P. 1114, 35 L. R. A., N. S., 438; Spring Garden Ins. Co. v. Wood, 194 F. 669, 114 C. C. A. 416; Weatherholt v. National Liberty Co., 204 Ky. 824, 265 S.W. 311; Firemen's Fund Co. v. McGreevy, 118 F. 415, 55 C. C. A. 543.)

GIVENS, J. Wm. E. Lee, C. J., and Budge, Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

Appellant Muncey was the agent in Coeur d'Alene for the respondent Security Insurance Company for the purpose of writing insurance. On September 1, 1923, appellant wrote a $ 1,500 policy of insurance upon a private barn located on farm property belonging to him. Some time after the date the policy was written, presumably about the fourth and not later than the seventh day of September, 1923, the barn burned. Settlement of appellants' loss not having been made this suit was instituted. Certain evidence was introduced and appellants tendered an offer of proof which was objected to on the ground that there being no evidence showing acceptance of the risk after the policy was written, respondent was not bound or obligated thereby. The objection was sustained and plaintiff rested, whereupon a nonsuit was granted.

Appellants' assignments of error go to the question of whether or not the issuance of the policy bound or obligated the respondent and whether or not the policy was accepted by respondent.

Where an insurance agent himself is an applicant for insurance, the company is not bound or obligated, unless, being fully informed of the facts, the company accepts the risk. (32 C. J., 1055, 1071, sec. 149; Wildberger v. Hartford Ins. Co., 72 Miss. 338, 48 Am. St. 558, 17 So. 282, 28 L. R. A. 220; Ramspeck v. Pattillo, 104 Ga. 772, 69 Am. St. 197, 30 S.E. 962, 42 L. R. A., N. S., 197; Salene v. Queen City Fire Ins. Co., 59 Ore. 297, Ann. Cas. 1916D, 1276, 116 P. 1114, 35 L. R. A., N. S., 438; Nertney v. National Fire Ins. Co. of Hartford, Conn., 199 Iowa 1358, 203 N.W. 826; Weatherholt v. National Liberty Co., 204 Ky. 824, 265 S.W. 311.)

Appellants' offer of proof in so far as it pertains to the solicitation of Muncey's business and acceptance was as follows:

"First if the court please, I offer this for the record. That in the year 1921, and the year 1922, about the middle of the year, Mr. Crockett, the State Agent, came to the office of R. H. Muncey, in Coeur d'Alene, and complained to Mr. Muncey that he wasn't giving them enough of his individual insurance, that is insurance on his own property, and told him at that time he wished he would give them as much of the insurance as he could let them have. Mr. Muncey explained that it was necessary that he give part of it to another insurance company he represented but would try to do a little better by them. In January, 1923, following this conversation, and in March, 1923, he wrote two policies in favor of this company, and that a few weeks or months afterwards, and before writing...