56 Neb. 306 | Neb. | 1898
This was an action to recover on a policy of fire insurance, coupled with a proceeding to reform the policy. The policy, as issued, contained a promise on the part of the insured that he would take an inventory of the stock 'of goods insured at least once a year; that he would keep books of account showing all purchases and sales, and would keep the inventories and books locked in an iron or fire-proof safe or vault at night and at all times when the building described as containing tlie insured goods was not open for business, or in some secure place not exposed by fire ivliich would destroy the building. The stock of goods insured was destroyed by fire. The plaintiff had taken and kept an inventory and books as required by the provision referred to, but he did not preserve them in a safe or other secure place. On the contrary, he kept them in his store, with the goods, and they were destroyed. The reformation asked was the
Plaintiff had formerly a safe in his office and had a policy in the defendant company containing the “iron-safe clause.” The safe had, however, been removed before the present policy was negotiated. Plaintiff testified that an agent of defendant, one Gue, called on him with reference to a renewal of his policy. Gue is shown to have been merely a soliciting agent with power simply to receive and transmit applications, and, it seems, also, to receive payments of premiums. When the application was made out plaintiff told Gue that he no longer had a safe and that he had no place to keep his books. Gue said that would be all right and made out the application accordingly. Plaintiff did not promise as stated in the ■policy. Plaintiff’s wife heard the conversation and testified that she heard plaintiff state that he had no safe and Gue replied that it made no difference in case the company accepted the application; that plaintiff then told Gue he kept his books in the building, and Gue said that made no difference, it was all right to keep them there. Gue denied that there was any talk as to the place of keeping the books. In the application in evidence there are questions as to whether such books were kept, and the question “Are they kept in fire-proof safe?” The answer is “No.” The application was made and the premium paid November 3fi, 1894, and the insurance then began. The policy was not delivered until about December 1, and the fire occurred December 12. On this evidence the court based its findings. While it is conflicting, and on the part of the plaintiff perhaps not very
It is argued that Gue, being only a soliciting agent, could not bind the company by any agreement prior to the policy or in conflict with its terms. It has often been held that the insurer is bound by the knowledge of its agent, so as to constitute a waiver of the strict terms of policies afterwards issued. In regard fo soliciting agents the following language from State Ins. Co. v. Jordan, 29 Neb. 514, is peculiarly applicable: “The agents of an insurance company authorized to procure applications for insurance and to forward them to the company for acceptance are the agents of the insurer’s, and not of the insured, in all they do in preparing the applications or as to any representations they may make to the insured as to the character and effect of the statements so made. * * * Public policy and good faith require that the persons clothed by the insurance companies with power to examine proposed risks and fill out, receive, and approve applications for insurance shall bind their prin
Affirmed.