126 Iowa 225 | Iowa | 1904
Tbe policy in suit was issued by tlie defendant, through its local agent at Oskaloosa, Chas. !E. Brown, to the Oskaloosa Cigar Company, in January, 1901; A. J. St. Clair being at the time the manager of the cigar company. On. the 18th day of June, 1901, the policy was assigned to St. Clair, with the consent of the defendant, through the agent, Brown. The business had at that time been changed into a bottling works, and an indorsement was attached to the policy covering the bottling machinery and some household goods. On the 7th day • of August, 1901, a chattel mortgage was given by St. Clair to W. B>. T/acey, covering the property insured by the policy. A large part of the bottling machinery was bought of the plaintiff manufacturing company some time in April or May, 1901, under a conditional contract -whereby the company retained a lien upon the property for the purchase price. This contract was not recorded, however, until the 27th of August, 1901.
The policy contained a stipulation that it should be absolutely void, unless otherwise provided by agreement indorsed thereon or added thereto, if the property insured, or any part thereof, should be mortgaged, “ or if any persons than the assured now have, or shall hereafter acquire .any interest in or lien on the property hereby insured or any part thereof.” The policy also contained this provision:
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, except the general manager of this company in Chicago, shall have the power to waive, change or modify any provision or condition of this policy, except such as by the terms of this policy may be the subject*227 of agreement indorsed bereon or added hereto, and as to snob provisions and conditions no officer, agent or representative, except the general manager of this company in Chicago, shall have such power, or be deemed or held to have waived, changed or modified such provisions or conditions, and such waiver if any, shall be written hereon 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. ' .
It is conceded there was a breach of the contract, and, unless it be shown that there was a waiver thereof by the defendant, no recovery can be had on the policy. There was evidence tending to prove that the local agent, Brown, was notified of the conditional contract with the manufacturing company, and of the mortgage to Lacey, and that he consented thereto, and agreed to have the proper indorsement made on the policy, and subsequently told St. Clair that the policy was all right without such indorsement. It must be conceded, for the purposes of this opinion, that the evidence on this subject was sufficient to warrant the jury in finding that Brown had knowledge of the change of title and of the mortgage, and that he orally consented thereto. What, then, was his actual authority in the premises? His appointment as agent was contained in a written instrument which authorized him “ to receive proposals for insurance; to receive moneys and to countersign, issue and renew policies of insurance ‘ subject to such rules and regulations as are or may be adopted by said company.” The appellant contends that the policy itself gave the local agent authority to waive, change, or modify the provisions or conditions thereof, provided only that such waiver be in writing indorsed thereon. The provision of the policy will not bear this construction, however. It says that no agent except the general manager shall have ppwer to waive, change, or modify any provision or condition of the policy, except such as by the terms thereof may be the subject of
This brings us to the consideration of section 1750 of the Code, which was enacted in 1897, and which, so far as it relates to this case, is as follows: “ Any officer, agent or other representative of an insurance company doing business in this State who may solicit insurance, procure applica
These decisions do not hold that there can be no waiver by the local agent in the absence of limitations upon his authority of which the assured has knowledge, and hence they are not in conflict with the Viele Case, and other decisions of this court along the same line. They rest upon
It was error, therefore, to hold that Brown had no authority to waive the conditions of the policy, and on all questions of fact the case should have been submitted to the jury.— Reversed.