157 P. 324 | Okla. | 1916
The plaintiffs (designated as in the court below) sued upon an insurance policy for loss by fire. Defendant pleaded breaches of the policy: First, that plaintiffs were not fee-simple owners of the property insured; second, that after the policy was issued plaintiffs took out additional insurance; and, third, that after the policy was issued plaintiffs mortgaged the property. In reply plaintiffs pleaded notice of all these breaches to the defendant's agent, and waiver by conduct.
The grounds urged for reversal are: First, that the testimony showed that R.O. Dulaney, the agent, who issued the policy, was only a "soliciting" and not an "issuing" agent, and that therefore notice of these defects to him was not notice to the company; second, that even if the view be taken that Dulaney was an "issuing" agent, he could waive the conditions of the policy only in the manner prescribed therein, to wit, in writing indorsed on or attached to the policy; and, third, that even if Dulaney were an "issuing" agent and might waive conditions arising at the time the policy was written and delivered, after the issuance of the policy the insured became bound by notice of the terms, which were that waiver could be made only in writing and by the secretary or assistant secretary at Chicago.
In relation to the breach alleged with regard to the title we think the question of waiver by the agent is immaterial. The testimony tended to show that the owners of the lots upon which the building insured was built, desiring to get some buildings upon their town site as an advertisement and aid to the sale of other lots, had agreed *694
with plaintiffs that if they would build a good structure upon the lots in question, the owners would convey them to plaintiffs without cost; that plaintiffs had complied with their part of the bargain, and at the time the insurance was issued were entitled to a deed. There was no dispute between plaintiffs and the record owners of the lot. Plaintiffs were and had been in possession; the deed had just not been issued. Under such conditions the plaintiffs had title sufficient to support the statements of their application and to comply with the ownership provision of the insurance contract. ArkansasIns. Co. v. Cox,
As to the second proposition, this court has always been careful to distinguish between the effect of the acts of mere soliciting agent — that is, an agent who has power only to solicit applications for insurance and forward them to some other officer by whom the policy is issued — and an "issuing" agent, who not only solicits the insurance, but accepts premiums and has power to determine the risk and issue the policy himself. The rule of Western Nat. Ins. Co. v. Marsh,
"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,
"Foreign companies admitted to do business in this state shall make contracts of insurance upon lives, property, or interests herein, only through lawfully constituted and licensed resident agents. * * *" *697
In view of this we assume that the defendant company contracted through its resident agent, Dulaney.
This brings us to the consideration of the final question, involving part of both the second and third contentions above set out, to wit: If Dulaney be considered an issuing agent, still he could waive the provisions of the policy only in writing, especially the breaches by reinsurance and mortgaging, which took place after the inception of the contract. This contention as to agents finds some support in the decisions of this court (Sullivan v. Merc. Town Mut. Ins. Co.,
Judgment affirmed.
By the Court: It is so ordered. *699