Western Nat. Ins. Co. v. Marsh

• Decision Date: 09 April 1912
• Citation: 125 P. 1094,34 Okla. 414,1912 OK 302
• Parties: WESTERN NAT. INS. CO. v. MARSH.
• Court: Oklahoma Supreme Court

125 P. 1094

34 Okla. 414, 1912 OK 302

WESTERN NAT. INS. CO. v. MARSH.

Supreme Court of Oklahoma

April 9, 1912

Syllabus by the Court.

When a local agent of a fire insurance company, who has the power to accept a risk and deliver the policy of insurance, at and prior to the time of the delivery of the policy, is advised and has full knowledge of the fact that other insurance upon the property is in force, and with that knowledge accepts the premium and delivers the policy, such policy is binding upon the company, notwithstanding the fact that it contains a provision prohibiting the existence of concurrent insurance without written consent thereto indorsed on the policy, and notwithstanding it contains a provision that none of the company's officers or agents can waive any of its provisions, except in writing indorsed on the policy.

The burden of proof in such cases rests upon the insured to show that the agent of the insurer was advised and had knowledge of the pre-existing insurance.

Commissioners' Opinion, Division No. 1. Error from District Court, Okmulgee County; W. L. Barnum, Judge.

Action by Henry A. Marsh against the Western National Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

George C. Beidleman and Joe S. Eaton, both of Okmulgee, for plaintiff in error.

Stanford & Cochran, of Okmulgee, for defendant in error.

AMES C.

The policy sued on contains this provision: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." Also the following "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 as such by the terms of the 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." In the suit on the policy the company defended upon the ground that there was other insurance existing at and prior to the time the policy was delivered, and that consent thereto was not indorsed upon the policy. In avoidance of this defense, the plaintiff replied by saying that the agent of the company, at and prior to the time of the delivery of the policy, was advised and knew of the existence of this other insurance, and that on that account he was entitled to recover, notwithstanding the failure to indorse the consent in writing.

This presents a question which is of first impression in this state. The territorial decisions, following those of the United States, have held that under these facts the company was not liable. Liverpool, London & Globe Ins. Co. v Richardson Lumber Co., 11 Okl. 585, 69 P. 938; Gish v. Ins. Co. of North America, 16 Okl. 59, 87 P. 869, 13 L. R. A. (N. S.) 826. Those cases were correctly decided because the Supreme Court of the territory was bound by decisions of the Supreme Court of the United States, and that court had established the rule in Northern Assurance Co. v. Grand View Building Association, 183 U.S. 308, 22 S.Ct. 133, 46 L.Ed. 213. Since the admission of the state, the question has arisen in several cases upon contracts arising prior to statehood, and this court has followed Northern Assurance Co. v. Grand View Building Association because it controlled the rights of the parties at that time, but has expressly reserved this question as applied to cases arising since statehood. In Sullivan v. Mercantile Town Mut. Ins. Co., 20 Okl. 460, 465, 94 P. 676, 129 Am. St. Rep. 761, this court, in referring to Northern Assurance Co. v. Grand View Building Ass'n, say: "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." In State Mut. Ins. Co. v. Craig, 27 Okl. 90, 111 P. 325, the same conclusion was reached, but subject to the same reservation; the opinion in this case quoting the reservation from Sullivan v. Mercantile Town Mut. Ins. Co., supra. Ph nix Ins. Co. v. Ceaphus, 29 0kl. 608, 119 P. 583, follows this rule, but with the same reservation.

This case, however, arose after the admission of the state, and we are no longer bound by the decision in Northern Assurance Co. v. Grand View Building Association, although we very frankly concede that the argument of that case is very powerful, and the persuasive force of the decisions of that eminent court have great weight with us as authority. Massachusetts adopts the same rule as the Supreme Court of the United States. Parker v. Rochester German Ins. Co., 162 Mass. 479, 39 N.E. 179; Putnam Tool Co. v. Fitchburg Mut. F. Ins. Co., 145 Mass. 265, 13 N.E. 902; Pendar v. Am. Mut. Ins. Co., 12 Cush. (Mass.) 469; Worcester Bank v. Hartford F. Ins. Co., 11 Cush. (Mass.) 265, 59 Am. Dec. 145. We believe, though, that all the other states hold that, where the local agent is advised and had knowledge of the existing insurance at the time he writes and delivers the policy, the company is bound, notwithstanding the want of a written indorsement. Various reasons are assigned by the courts for this conclusion, and we do not feel that it is necessary for us to undertake to analyze the decisions. There are exhaustive notes on the subject in connection with Gish v. Ins. Co. of North America, 16 Okl. 59, 87 P. 869, as reported in 13 L. R. A. (N. S.) 827, and the case of Haapa v. Metropolitan Life Ins. Co., 150 Mich. 467, 114 N.W. 380, as reported in 16 L. R. A. (N. S.) 1165, 121 Am. St. Rep. 627, and Johnson v. Ætna Ins. Co., 123 Ga. 404, 51 S.E. 339, as reported in 107 Am. St. Rep. 92, the note beginning on page 99.

It seems to us that the local agent of the company, who has authority to make the contract of insurance and to indorse the company's consent to this provision upon the contract, is the company's representative for the purpose of waiving such an indorsement. Indeed, in the policy sued on, which appears to be signed by the president and secretary of the company, it is expressly provided: "But this policy shall not be valid until countersigned by the duly authorized agent of the company at Morris, Oklahoma." If, therefore, this agent had authority to make the contract of insurance, and authority to indorse thereon the consent of the company to the existence of other insurance, it seems to us that when he is advised of this other insurance, and has full knowledge thereof, and executes and delivers the contract and receives the premium from the insured, the company is bound by his knowledge, and that it is immaterial whether we call it a waiver or an estoppel, or any other name; and this conclusion has been reached by the highest courts of the following states: Alabama, Arkansas California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Indian Territory, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Cowart v. Capital City Ins. Co., 114 Ala. 356, 22 So. 574; Pope v. Glens Falls Ins. Co., 130 Ala. 356, 30 So. 496; Triple Link M. Ins. Ass'n v. Williams, 121 Ala. 138, 26 So. 19, 77 Am. St. Rep. 34; Western Assur. Co. v. Stoddard, 88 Ala. 606, 7 So. 379; State Mut. Ins. Co. v. Latourette, 71 Ark. 242, 74 S.W. 300, 100 Am. St. Rep. 63; German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S.W. 428, 54 Am. St. Rep. 297; Dwelling House Ins. Co. v. Brodie, 52 Ark. 11, 11 S.W. 1016, 4 L. R. A. 458; Allen v. Home Ins. Co., 133 Cal. 29, 65 P. 138; Breedlove v. Norwich Union Fire Ins. Soc., 124 Cal. 164, 56 P. 770; Farnum v. Ph nix Ins. Co., 83 Cal. 246, 23 P. 869, 17 Am. St. Rep. 233; West Coast Lumber Co. v. State Ins. Co., 98 Cal. 502, 33 P. 258; Kruger v. Western Fire Ins. Co., 72 Cal. 91, 13 P. 156, 1 Am. St. Rep. 42; American Cent. Ins. Co. v. Donlon, 16 Colo. App. 416, 66 P. 249; German Ins. Co. v. Hayden, 21 Colo. 127, 40 P. 453, 52 Am. St. Rep. 206; Farmers' & Merchants' Ins. Co. v. Nixon, 2 Colo. App. 265, 30 P. 42; Hartford Fire Ins. Co. v. Redding, 47 Fla. 248, 37 So. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118; Johnson v. Ætna Ins. Co., 123 Ga. 404, 51 S.E. 339, 107 Am. St. Rep. 92; Swain v. Macon Fire Ins. Co., 102 Ga. 96, 29 S.E. 147; Ph nix Ins. Co. v. Searles, 100 Ga. 97, 27 S.E. 779; Mechanics' & Traders' Ins. Co. of New Orleans v. Mutual Real Estate Building Ass'n, 98 Ga. 262, 25 S.E. 457; German-American Ins. Co. v. Paul, 5 Ind. T. 703, 83 S.W. 60; Allen v. Ph nix Ins. Co., 12 Idaho, 653, 88 P. 245, 8 L. R. A. (N. S.) 903, 10 Ann. Cas. 328; Orient Ins. Co. v. McKnight, 197 Ill. 190, 64 N.E. 339; Security Trust Co. v. Tarpey, 182 Ill. 52,...