76 Ark. 180 | Ark. | 1905
(after stating the facts.) An insurance policy, like any' other contract, which by reason by mistake in its execution does not conform to the real agreement of the parties, may be reformed in a court of equity. Thompson v. Insurance Company, 136 U. S. 287, 10 Sup. Ct. 1019, 34 L. Ed. 408; Snell v. Insurance Company, 98 U. S. 85, 25 L. Ed. 52; Jamison v. State Insurance Company, 85 Iowa, 229, 52 N. W. 185. The proof fully warranted the decree of the court reforming the policy in the particulars specified. The testimony is undisputed that a mistake was made in writing the policy to and in the name of Amis, instead of the lumber company, and in writing it on all the lumber, instead of on the lumber in the loading shed. This disposes of the contention of appellant as to the coinsurance clause in the policy. Treating it as reformed so as to insure only 'the lumber in the shed, the insurance thereon was more than the percentage of value required in the policy, and the terms-of this clause were complied with.
It is contended on behalf of appellant that, because of the stipulation in the Greenwich policy requiring five days to the assured before cancellation, the policy was not legally canceled, and that the substitution by the agent of the Phoenix policy was unauthorized. We cannot sanction this view. The stipulation for five days’ notice of cancellation was made for the benefit of the assured, and could be waived by the assured. Southern Ins.. Co. v. Williams, 62 Ark. 382, 35 S. W. 1101; Kirby v. Ins. Co., 13 Lea, 340; Buick v. Mechanics’ Ins. Co., 103 Mich. 75, 61 N. W. 337. The policy was in fact canceled by the agent, and his act in so doing was ratified as soon as brought to the attention of the assured. The stipulation was a part of the Greenwich policy, and appellant had no interest therein or concern therewith. Appellant's agent issued a policy on the property in question, which was in force at the time of the fire. The agent wrote the assured: “I am cancelling the lumber policy and rewriting same in the Phoenix of Brooklyn, and shall send you policy at once. * * * Please return the lumber policy in Greenwich at once.” He mailed the policy to the assured before the fire, and same reached the postoffice at Rison, the home of Mr. Amis, before the fire, but was not taken from the office until the next day. Meanwhile the fire occurred. The proof shows that a previous agreement existed between Amis and Banks, the agent, that the property of the lumber company should be kept insured. No particular insurance company or companies were mentioned, and Amis gave no concern to that matter. He constituted Banks his agent for the purpose of selecting the company or companies, and, pursuant to this arrangement, Banks, without notice to Amis, canceled the Greenwich policy, and substituted therefor the Phoenix policy, and mailed it to Amis before the fire occurred. Banks, though the agent of the insurance companies, could be and was made the agent of the insured for those purposes. Ostrander on Insurance (2 Ed.), § § 41, 42; Schauer v. Queen Ins. Co., 88 Wis. 561, 60 N. W. 994; Mich. Pipe Co. v. Mich., etc., Ins. Co., 92 Mich. 482, 52 N. W. 1070, 20 L. R. A. 277; Dibble v. Northern Ins. Co., 70 Mich. 1, 37 N. W. 704, 14 Am. St. Rep. 470; Arnfeld v. Guardian Ins. Co., 172 Pa. 605, 34 Atl. 580; Huggins, Croker & Cowdy Co. v. People’s Ins. Co., 41 Mo. App. 530. We see no escape from the conclusion that the Phoenix policy was in force when the fire occurred, and that that company is liable for the loss.
Decree affirmed.