Salquist v. Oregon Fire Relief Ass'n

197 P. 312, 100 Or. 416, 1921 Ore. LEXIS 118

• Court: Oregon Supreme Court
• Decided: April 12, 1921
• Status: Published

Opinion

BURNETT, C. J.

To sustain her allegations of the agency of Brown, the plaintiff offered, and over the objections of the defendant there was received, evidence of the acts and statements of Brown, but no writing creating his authority. The effort of the complaint is to recover upon an oral contract of insurance. Throughout the pleading the matter is spoken of as a “contract of insurance.”

1. It is said in Section 6457, Or. L., that—

“From and after the first day of September, 1911, no fire insurance company, corporation or association, their officers or agents, shall make, issue, use, or deliver for use, any fire insurance policy, or renewal of any fire policy on property in this state, other than as shall conform to the following conditions, which conditions shall be contained upon page two of such policy of insurance and which shall form a portion of the contract between such insurer and insured, and which shall read as follows”:

Then comes the schedule of conditions which are required to be made part of every policy; among others, those already quoted from the policy of which the policy sued upon was to be the renewal. Under this statute it could not be lawfully within the contemplation of the parties that any liability should inure against the defendant except upon a contract such as the law prescribes. In other words, requiring as it does, that any policy, whether original or a renewal, shall contain the statutory conditions, the enactment in question prescribes an exclusive evidence of contract, analogous to such enactments as the statute of frauds. Oral contracts of insurance are impossible under our statute.

2. It is argued that the requirements of the act specifying that ‘‘in any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company,” applied only to the former policy expiring January 27, 1918. The renewal of the insurance effected by the former policy was certainly a matter relating to that insurance, which in that view of the case would make effective the requirement of writing as a proof of agency. Conceding, but not admitting, that the condition in that policy related only to itself, yet any policy lawfully issued would require the same thing in obedience to the statute. The deduction is that, if anyone assuming to act for an insurance company in this state, undertakes to effect insurance, his authority to do so must be in writing. Ignorance of the law excuses no one. The statute in question by force of its terms is written into every policy issued or to be issued while the statute stands. No writing whatever conferring any authority upon Brown, upon whose conduct the plaintiff relies, was offered in evidence. At the trial, the plaintiff contented herself, over the objection and exception of the defendant, with offering the acts and declarations of Brown to charge the company. No evidence whatever was given that the defendant knew anything about the conduct of Brown.

3, 4. By an answer interposed in some former litigation of the dispute between the parties in this matter, the defendant admitted that Brown was authorized to solicit insurance. This, however, was explained by the attorney who drew the pleadings to have been inserted under a wrong conception of the facts, and was afterwards withdrawn by amendment. But this is not the writing contemplated by the statute, and even if it were, authority to solicit insurance confers no power upon the agent to write insurance to hind the company. Indeed, the very policy which the plaintiff had and which she sought to renew contains the provision that the liability of the association shall not commence “until such party’s application for insurance and membership is received and approved by the home office.” It is true, the liability may be varied by the agent in cases of emergency, but then only “under instructions from the association.” No such instructions appear in the record.

5. It is argued that agency can be proved in such instances by the defendant’s holding out the individual in question as its agent. This is directly in the face of the statute, which requires the agent’s authority to appear in writing. Besides, there is no evidence whatever that the defendant held out Brown as its agent at the time he is said to have made the contract, or that at any time it held him out as authorized to do more than solicit applications to be forwarded to the home office for approval. As said by Mr. Justice Ramsey, in Oatman v. Bankers’ Fire Relief Assn., 66 Or. 388 (133 Pac. 1183, 134 Pac. 1033):

“The rules relevant to questions of waiver prior to the enactment of the standard policy law do not apply now. So far as this statute is inconsistent with the common law, it supersedes it.

“It is the duty of the courts to give effect to the statute, and not to nullify its requirements. This statute not only imposes a penalty on insurance companies for noncompliance with its terms, but it declares in express terms that if the condition quoted, supra, is not complied with, the policy is void. ’ ’

Before the enactment of the standard policy law, the courts went to extremes in charging an insurance company upon the acts and declarations of anybody who so much as had the smell of agency upon his garments, however or whenever or for whatever acquired. But the statute has superseded such decisions and has fixed a standard to which all must conform, if they would impose liability upon an insurance concern. The extent of the authority of a mere solicitor for business which must be confirmed at the home office of a corporation is discussed by Mr. Justice Johns, in Bagot v. Inter-Mountain Milling Co., 100 Or. 127 (196 Pac. 824). In the instant ease there is the express condition appearing in the record, that liability shall not accrue until an application is received and approved by the home office.

6. The plaintiff alleges that she performed her part of the contract. One of these requirements was to pay the premium. This she did not do. She said in her testimony that she offered to pay John Brown two days before the expiration of the former policy, when he told her that he was not the agent. She says, “I offered him the money and he said he was no agent.” She says she went to the office of Quick, another agent, some day in February, but did not find him. So far as that is concerned, the company was not obliged to renew her insurance. In the whole record there is no situation disclosed where either party could have sued the other, the defendant to recover the premium, or the plaintiff to compel the issuance of a policy. All that the testimony discloses is that there were negotiations irrespective of any authority of the supposed agent, but which did not culminate in an agreement.

The Circuit Court was in error in not allowing the defendant’s motion for a nonsuit.

The judgment is reversed.

Reversed. Rehearing Denied.

Bean, Johns and Brown, JJ., concur.