Springfield Fire & Marine Ins. Co. v. Simmons, Case Number: 27846

• Decision Date: 13 December 1938
• Docket Number: Case Number: 27846
• Citation: 1938 OK 647,87 P.2d 941,184 Okla. 323
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. et al. v. SIMMONS et al.
• Court: Oklahoma Supreme Court

1938 OK 647

87 P.2d 941

184 Okla. 323

SPRINGFIELD FIRE & MARINE INS. CO. et al. v. SIMMONS et al.

Case Number: 27846

Supreme Court of Oklahoma

Decided: December 13, 1938

Syllabus

¶0 1. INSURANCE - Authority of Local Agent to Issue Fire Policy.

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 (sec. 10486, O. S. 1931, 36 Okla. St. Ann. sec. 126), even though the policy contained a provision providing that it "shall not be binding until countersigned by the managers of the company in its Western Department Office at Chicago, Illinois."

2. SAME - Effect of Assignment of Policy to Purchaser of Property - Authority of Insurer's Agent to Consent to Assignments.

The assignment of a fire insurance policy to the purchaser of the insured property with the written consent of the company in effect creates a new contract between the company and the purchaser of the insured property with the terms and conditions of the old contract imported into the new, and an agent of the company having power to issue policies and to make contracts of insurance for the company may consent to assignments for the company.

3. SAME - Action on Fire Policy - Lack of Evidence to Support Defenses Pleaded - Issue for Jury Limited to Value of Property Lost.

Where fire insurance companies plead certain defenses based upon violations of provisions of policies issued, but fail to introduce evidence tending to sustain these defenses, it is not error to so instruct the jury, and to limit the issue submitted to the jury to the value of the property lost.

4. SAME - Policy Covering Different Classes of Property Separately Valued - Three-Fourths Value Clause Applied to Loss of Each Class of Property.

In this jurisdiction the general rule is, where an insurance policy is issued to insure different classes of property, each class being separate from the other, separately valued, and insured for a specific amount, the contract should be considered as a divisible contract, and the three-fourths clause should be applied to the loss of each class of property lost.

Appeal from District Court, Osage County; Jesse Worten, Judge.

Actions on insurance policies by J.B. Simmons against the Springfield Fire & Marine Insurance Company and others; E.L. Newblock, as mortgagee of certain insured property, being made a party defendant. Judgment for plaintiff, and all defendants except Newblock appeal, and plaintiff cross-appeals. Affirmed.

Rittenhouse, Webster & Rittenhouse, for plaintiffs in error.

O.H. Searcy, for defendant in error E.L. Newblock.

Henry R. Duncan, for defendant in error J.B. Simmons.

WELCH, J.

¶1 This is an appeal from the district court of Osage county, Okla. John Canville was the owner of certain real estate in Osage county, whereon was located a dwelling house. He sold the property to J.B. Simmons, plaintiff herein, in February, 1934. About March 5, 1934, a fire destroyed this dwelling. In February, 1932, Springfield Fire & Marine Insurance Company, through its agent at Sand Springs, Okla., had written a policy of fire insurance on this building for $2.000. The loss under this policy is the basis of action No. 15809. February 20, 1934, after Simmons purchased this property, he procured from the same agent at Sand Springs a policy of fire insurance from Phoenix Assurance Company for $3,125, covering said dwelling, the household goods therein, and other properties not involved under this policy, and the loss under this policy is the basis of action No. 15810. At the same time and under the same circumstances, he procured a policy for $3,125, covering the same properties, from National Fire Insurance Company of Hartford, Conn., and the loss under this policy is the basis of action No. 15811. These cases were consolidated for trial and appeal. The jury answered interrogatories in verdict form in favor of Simmons. The companies have appealed, and Simmons has cross-appealed.

¶2 The companies have presented many assignments, in some instances joining several under one head. In some instances the arguments of one company are not available to the others, and this necessitates an extended discussion of the propositions.

¶3 Springfield demurred to the evidence upon separate grounds, and contends that there was no proof of a valid transfer of the policy issued by them to Canville. After Simmons had purchased the property described in the policy, the following indorsement was attached to the policy:

"Notice is given and accepted that, by virtue of warranty deed the title to the property insured is vested in J.B. Simmons; and the purpose of this endorsement is to correct the name of the assured under this policy to read: 'J.B. Simmons' otherwise policy remains unchanged. Date of endorsement February 20, 1934.

"General Insurance Agency

"M.O. Ruppert, Agent."

¶4 The question is whether or not the local agent had such authority as to bind the company by the above notation.

¶5 The policy contains a provision that it should be void:

"* * * In case any change shall take place in title or interest or possession of the property herein named; * * * or if this policy shall be assigned without written consent hereon. * * *"

¶6 The policy further provides and is endorsed is follows:

"And it is hereby understood and agreed by and between this company and the assured that this policy is made and accepted in reference to the foregoing terms and conditions and that a breach of any of its conditions shall forfeit this entire policy as to all of the subjects of insurance named herein. No agent or employee of this Company or any other person or persons, except an officer or the Western Department Managers in writing shall have power or authority to waive or alter any of the terms or conditions of this policy.

"In Witness Whereof, The Springfield Fire and Marine Insurance Company of Springfield, Mass., has caused these presents to be signed by its President and attested by its Secretary in the City of Springfield, Mass., but the same shall not be binding until countersigned by the Managers of the Company in its Western Department Office at Chicago, Illinois, and also by a duly authorized agent of the company, residing within the State, where the property is located.

"Geo. G. Bulkey

"President,

(Illegible)

"Secretary

"Countersigned at Chicago General Agency (Date) February, 27, 1932.

"Harding (Illegible)

"Managers

"Countersigned at Sand Springs, State of Oklahoma.

"General Insurance Agency

"W.O. Ruppert, Agent."

¶7 In the case of Home Insurance Co. of New York v. Mobley et al., 57 Okla. 692, 157 P. 324, this court, in the syllabus, held:

"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 (10486, O. S. 1931) 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'."

"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."

¶8 In the body of the opinion it was said:

"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.'

"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.'

"In Rochester German Ins. Co. v. Rodenhouse, 36 Okla. 378-383, 128 P. 508, this court held that a provision similar to the sentence last quoted of itself constituted the person designated an issuing agent. Counsel for plaintiff in error attempt to avoid the effect of the decision by calling attention to the provision above quoted in regard to the required countersignature of the secretary, and urge that the provision distinguishes the policy under consideration from that in the Rodenhouse Case, supra. In our view the countersignature of the secretary is but an additional requirement, leaving the final act of issuance and the final determination as to whether or not the policy shall issue and the delivery of the policy to the local agent. In the Rodenhouse Case the policy - an ordinary standard form - would not have been valid without the signatures of the president and secretary of the company, but it was the countersignature of the agent which was the final act necessary to its validity. So in the case at bar the company required the additional precaution of the countersignature of the secretary at Chicago, but the final act and the final discretion to be exercised was that of the local agent. We feel sure that if a fire had occurred in this case after the policy had been signed and forwarded by the secretary, but before it had been countersigned and delivered by the local agent, this company would be before us urging - and rightfully - that the policy had never become a completed contract. We hold, therefore, that the agent, Dulaney, was an 'issuing' agent of the company, and that the trial court was right in assuming such a status of the agent as a

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