Richard v. Springfield Fire & Marine Ins. Co
| Decision Date | 08 May 1905 |
| Docket Number | 15,578 |
| Citation | 38 So. 563,114 La. 794 |
| Parties | RICHARD v. SPRINGFIELD FIRE & MARINE INS. CO |
| Court | Louisiana Supreme Court |
Action by Rochbert P. Richard against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff was reversed on appeal by the Court of Appeal, and plaintiff applies for certiorari or writ of review. Judgment of Court of Appeal reversed, and of district court affirmed.
Lewis & Lewis, for applicant.
Clegg & Quintero and Kenneth Baillio, for respondent.
On August 25, 1903, plaintiff was insured by defendant against loss by fire in the sum of $ 1,000 on a small stock of merchandise. The policy was countersigned and issued by the Roos-Edwards Agency, of the town of Opelousas La. The usual "iron-safe clause" was attached to the policy, and the following indorsement appears thereon, to wit:
"Permission is hereby given for 30 days to take complete inventory of stock."
No inventory was taken, and on November 5, 1903, the agency made the following indorsement on the policy, to wit:
"The assured, under the above named and numbered policy, having been prevented through illness from completing the inventory of his stock of merchandise, a further period of thirty days additional is hereby given in which to complete said inventory."
On November 8th, five days later, the stock of merchandise was destroyed by fire. The company received notice of the total loss before it received notice by mail of the extension of 30 days.
Payment of the policy having been refused, plaintiff brought suit thereon to recover the full amount, and obtained judgment in the district court. The insurance company appealed to the Court of Appeal which reversed the judgment, and the case is now before us on a writ of review.
The Court of Appeal held that the policy was forfeited by the failure of the assured to make the inventory within 30 days, as stipulated, and that the agents had no power, express or implied, to waive such forfeiture by granting an extension of time for the completion of the inventory. It is to be noted that the written extension for 30 days is indorsed on the "rider" containing the iron-safe clause. It does not appear whether the agent overlooked the fact that the clause itself granted this delay, or intended to grant a further delay of 30 days. Defendant's counsel, in their brief, suggest this doubt, and argue that the agent had no power to grant an extension of any kind.
The policy in question was signed by the president and secretary, and was to become valid when "countersigned by the duly authorized Agent of the Company at Opelousas."
This agent had full power to make the contract of insurance, to fill in the blanks, and to attach or indorse on the policy other provisions, agreements, or conditions. He was intrusted by the nonresident company with blank forms of policy, and the assured had no notice of the mandate, other than that conveyed by the policy itself, and the nature of the agent's employment. The last clause of the policy reads as follows, viz.:
"This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."
It follows from the terms of this clause that "provisions, agreements or conditions" indorsed on or added to the policy were subject to waiver written upon or attached to such instrument. The iron-safe clause formed no part of the printed conditions of the policy, but was added thereto by the agent, and hence was subject to the written waiver referred to in the last clause of the policy.
The agent had power to issue and renew policies, to make waivers, and grant permits, and the only question for discussion is whether his mandate or employment included the power to waive the forfeiture of the policy resulting from the failure of the insured to complete his inventory within the 30 days stipulated. Doubtless the company or its agent could have insisted on the forfeiture as a legal right, but at the same time would have been compelled to return the unearned premium for 11 months. The agent, being informed of the facts, was called upon to take some action in the premises. He elected to waive the forfeiture, rather than to cancel the policy and return the unearned premiums. This action induced the assured to rely on the policy as a still subsisting protection against loss by fire. This waiver was sent to the company by mail in the usual manner, but was not received until the day after the happening of the loss. The company did not notify the assured or the agent that the waiver was repudiated, and, after proofs were furnished, sent an adjuster to investigate the loss. The adjuster, however, acted under a nonwaiver agreement, and therefore all the defenses of the company were preserved.
The agent was furnished with blank policies signed by the president and secretary of the company, and was in the habit of issuing policies without requiring an application, and without referring the subject-matter to the company, in Springfield, Mass. The agent had apparently undoubted power to issue policies, and to attach thereto all the usual and customary agreements and "riders."
It is argued, however, that the agent had no power to waive conditions added to or attached to the policy at the time of the issuance. The last clause of the policy authorized a written waiver of such conditions, provided it be annexed to the policy. The district judge said:
The district judge cited authorities to show that the agent had general powers, and argued that, as the agent had authority to issue a new policy to the assured on the same conditions as those contained in the original policy, he had implied authority to recognize the validity of the subsisting...
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