State Mut. Ins. Co. v. Craig

• Decision Date: 13 September 1910
• Citation: 111 P. 325,27 Okla. 90,1910 OK 286
• Parties: STATE MUT. INS. CO. v. CRAIG.
• Court: Oklahoma Supreme Court

111 P. 325

27 Okla. 90, 1910 OK 286

STATE MUT. INS. CO. v. CRAIG.

Supreme Court of Oklahoma

September 13, 1910

Syllabus by the Court.

As to actions existing and pending in the courts of Oklahoma Territory at the time of the erection of the state, the decisions of the Supreme Court of the United States as applicable thereto are binding on the state courts in the determination of such cases.

Under the decisions of said court, restrictions inserted in an application for insurance, which by its terms becomes a part of the insurance contract and restricts the power of the agent to waive any condition therein contained, apply to conditions which relate to the inception of the contract as well as to matters arising subsequent to its execution.

In an insurance policy containing a clause providing that "This policy is based on an application of the insured on file with this company which is referred to as forming part of this policy, and it is understood that no other representations or statements have been made to the company or its agent than those written on said application, said application with everything therein contained, shall be a continuous warranty by the insured"--although the soliciting agent of the assurer made the estimates for the assured and inserted the same in the application, the same then being read over by said agent to the assured who signed the same, under the decisions of the Supreme Court of the United States, the assurer is not estopped from setting up misrepresentations made in said application to have said contract rescinded.

Error from District Court, Grant County; W. M. Bowles, Judge.

Action by Frank Craig against the State Mutual Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions.

Parker & Simons, for plaintiff in error.

A. M Mackey, for defendant in error.

WILLIAMS J.

The policy on which the action was based in the lower court was issued on April 11, 1906, by the assurer, a corporation organized under the laws of the territory of Oklahoma. A loss having occurred under the policy, suit was brought thereon in the district court of Grant county, territory of Oklahoma, on the 7th day of February, 1907, which was pending and undetermined at the time of the admission of the state into the Union.

Section 1 of the Schedule to the Constitution provides that: "No existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place."

In Sullivan v. Mercantile Town Mut. Ins. Co., 20 Okl. 460 94 P. 676, 129 Am. St. Rep. 761, this court, speaking through Mr. Justice Hayes, said:

"This rule laid down by the Supreme Court of the United States in Northern Assurance Co. v. Grand View Building Association, supra, 183 U.S. 308 [22 S.Ct. 133, 46 L.Ed. 213], was a controlling decision upon the trial court in the case at bar; and, while we do not wish to be understood as saying that it is our opinion that the doctrine announced in that case is in harmony with the weight of authorities upon this question, or that it is supported by the better reasoning, yet on account of the fact that the rule announced in said case was the law controlling the courts in the Indian Territory at the time of the trial of the case at bar we are constrained to follow in this case the rule announced therein, and hold that the trial court did not err in refusing to permit the introducing of oral testimony to show the knowledge of the agent of the company of the existence of said mortgage at the time of the execution and delivery of the policy, and that said court did not err in holding that the forfeiting of said policy, if any had occurred, was not waived, and that the defendant company was not estopped from pleading the same as a defense by reason of the fact that the agent of the company who countersigned and delivered said policy had knowledge at the time of the existence of said mortgage. In applying the rule of law adopted by the Supreme Court of the United States in said case to the case at bar, and in following the same,

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