Victory Ins. Co. v. Schroeder

• Decision Date: 20 March 1934
• Docket Number: Case Number: 22000
• Citation: 1934 OK 190,30 P.2d 894,167 Okla. 516
• Parties: VICTORY INSURANCE CO. v. SCHROEDER et al.
• Court: Oklahoma Supreme Court

1934 OK 190

30 P.2d 894

167 Okla. 516

VICTORY INSURANCE CO. v. SCHROEDER et al.

Case Number: 22000

Supreme Court of Oklahoma

Decided: March 20, 1934

Syllabus

¶0 1. Insurance--Cancellation of Policy by Notice to Agent of Insurer.

An insurance policy which provides that it may be canceled at the request of the insured is terminated immediately upon the delivery of the notice of cancellation by the insured to an authorized agent of the company.

2. Same--Fire Policy--Insurance Terminated by Notice Though Unearned Premium not Tendered Until After Loss by Fire.

Where an insurance policy provides that it may be canceled at any time at the request of the insured, and notice is given of the cancellation of the policy by the insured to an authorized agent of the insurer, the insurance terminates though no tender of the unearned premium is made until after the loss by fire.

3. Same--Insurer Held Liable on Policy Issued by Agent Who Knew of Original Outstanding Policy Which He Undertook to Have Canceled.

Where an insurer knew when it issued its policy that the original policy was still outstanding, and its agent was told by the insured that he desired to cancel the original policy, and the insurer's agent undertook to have the original policy canceled, the insurer was liable on its policy as an original insurer, the former original insurer having a defense to an action on the policy issued by it.

Appeal from District Court, Carter County; Asa E. Walden, Judge.

Action by Emil Schroeder against the Victory Insurance Company and another. Judgment for plaintiff against defendant named, and it and plaintiff appeal. Affirmed.

Thompson, Knight, Baker & Harris, Sol Goodell, and Johnson, McGill & Johnson, for plaintiff in error.

Andrew B. Riddle, for defendant in error Emil Schroeder.

Rittenhouse, Lee, Webster & Rittenhouse, for defendant in error Milwaukee Mechanics' Insurance Company.

PER CURIAM.

¶1 This action arose in the district court of Carter county, wherein Emil Schroeder was plaintiff and Milwaukee Mechanics Insurance Company, a corporation, and Victory Insurance Company, a corporation, were defendants. The case was tried to a jury on March 7, 1930, and at the close of the plaintiff's evidence, the Milwaukee Company demurred to the evidence of the plaintiff, and the plaintiff moved for judgment against both defendants. The court took both under advisement. The trial court discharged the jury, to which no one objected; and the trial without a jury was resumed on March 28, 1930, at which time evidence was offered by defendants, after which the court entered judgment for the plaintiff, Emil Schroeder, in the sum of $ 965.80, with interest thereon at the rate of 6 per cent. per annum from the 17th day of March, 1927, against the defendant Victory Insurance Company, and entered judgment in favor of the defendant Milwaukee Mechanics Insurance Company.

¶2 The plaintiff and the defendant Victory Insurance Company have appealed from the action of the trial court releasing the Milwaukee Mechanics Insurance Company, and a joint brief was filed for the plaintiff and the Victory Insurance Company. The Victory Insurance Company admits owing one-half of the judgment, which it has paid.

¶3 Emil Schroeder was the owner of a lot in the city of Ardmore, on which there was a frame residence. He carried a policy of fire insurance on the building with the Milwaukee Mechanics Insurance Company, dated April 8, 1924, and which ran for a period of three years. There was a mortgage on the property in favor of Emma E. Cowper and Christiana C. Presnel. The insurance policy with the Milwaukee Company was lost, so the plaintiff, Schroeder, on the 19th day of January, 1927, went to a Mr. Love, who had purchased the expirations from the Milwaukee Insurance Company, but who did not write insurance for the Milwaukee Mechanics Insurance Company, and said company did not have an agency at that time in Ardmore; and plaintiff told Mr. Love that he desired to cancel his policy with the Milwaukee Mechanics Insurance Company. Thereupon Mr. Love fixed up a lost policy voucher which was signed by the plaintiff and the two mortgagees, and in which the policy by the Milwaukee Mechanics Insurance Company to Schroeder was canceled. Mr. Love turned this lost policy voucher over to the plaintiff and told the plaintiff to send it, together with a draft that he made out for the sum of $ 1.22 for unearned premium on the policy, to Mr. R. A. Gamble, state agent for the Milwaukee Mechanics Insurance Company, at Wichita, Kan. The plaintiff took the voucher and draft to Mr. O. M. Redfield, who was the agent of the defendant Victory Insurance Company, telling him he wished to cancel the Wilwaukee Company policy and take out a new policy with Mr. Redfield's company. A new policy of insurance from the Victory Insurance Company to Schroeder for $ 1,000 was issued by Redfield. The lost policy voucher, together with the draft, was turned over to Mr. Redfield, who sent them through an Ardmore Bank to Wichita, Kan., to Mr. R. A. Gamble, state agent for the Milwaukee Company. The voucher and draft were returned from Wichita, Kan. R. A. Gamble, the state agent, on the 25th of January, 1927, wrote Mr. Love and acknowledged the fact that the lost policy voucher and the draft had been presented to him by the bank, but due to the fact that he did not have the necessary records, he returned it and instructed Love to take the matter up direct with the home office. Mr. Love did not do anything further about the matter, nor did Mr. Redfield, except that he required the plaintiff to pay him the $ 1.22, which he was supposed to have collected from the Milwaukee Mechanics Insurance Company. Redfield made no further effort to have the money paid by the Milwaukee Company.

¶4 On March 17, 1927, the plaintiff's building, which was covered by the policies heretofore referred to, was destroyed by fire. The Milwaukee Company did not tender the...