87 Wash. 79 | Wash. | 1915
Appeal from a judgment sustaining a recovery upon a fire insurance policy. The facts are about these: On May 19, 1912, Calhoun, Denny & Ewing, agents at Seattle for several fire insurance companies, including the
It is evident that no notice of cancellation was given respondent, and that it had no knowledge of the attempted cancellation of the Royal policy and the substitution of the Fireman’s Fund policy until after the fire. Section 108 of the insurance code (3 Rem. & Bal. Code, § 6059-108) provides for the cancellation of insurance policies only upon the giving of five days’ notice to the insured. The policy issued by the Royal Insurance Company contained a like provision. Not having complied with the law nor its own stipulation as to cancellation, the Royal policy was still in force at the time of the fire; and as the policy of appellant was
It is self-evident that, since the cancellation of the first policy was invalid, the risk of the second did not attach. Undoubtedly the insured may waive notice of cancellation, since such provision is for his benefit, and may acquiesce in the substitution of policies, but the mere receipt of a second policy after the fire cannot be such a waiver, since the rights of the parties can only be determined as of the time of bhe fire. The refusal to surrender the first policy evidences the fact that respondent did not acquiesce in its cancellation nor admit its liability had fully ceased. It is contended that
Respondent relies upon Finley v. Western Empire Ins. Co., 69 Wash. 673, 125 Pac. 1012, as supporting its judgment. That case is not authoritative here for the reason that while Rogers & Rogers were the agents of the New Brunswick Fire Insurance Company, which issued the policy it was sought to cancel, they were not the agents of the Western Empire Insurance Company, which issued the second policy, but as to such policy acted as brokers for Finley. It will also be noted that the court based its opinion upon the subsequent acts of the insurer which were held to work an estoppel, the insurance company going so far as to issue its check in payment of the loss and seeking to defend as against the policy in an action brought upon the check. In Finley v. New Brunswick Fire Ins. Co., 193 Fed. 195, in which the same insured as in the former case sought to recover upon the policy sought to be cancelled, it was held that, although the first policy had not been formally cancelled at the time of the loss, by acceptance of the second policy the insured had ratified the act of his agents in making the substitution, and for this reason could not recover upon the first policy. These cases present no question of double agency, as the agent obtaining the second policy was unquestionably acting for the insured, holding no relation whatever to the insurer.
The judgment is reversed, and the cause remanded with instructions to dismiss the action.
Fullerton, Chadwick, and Ellis, J J., concur.