State Mutual Insurance v. Latourette

74 S.W. 300, 71 Ark. 242, 1903 Ark. LEXIS 51

• Court: Supreme Court of Arkansas
• Decided: February 21, 1903
• Status: Published

Opinion

Hughes, J.,

(after stating the facts). It is contended by the appellant that the husband has no insurable interest in his wife’s property, and that L. Latourette had none in Mrs. Latourette’s property in this ease. But this question was not raised in the pleadings below in this ease, nor in the instructions asked, and it would therefore not be proper for us to -undertake to decide that question here on this appeal.

The only question here is one of waiver. When the agent was informed by L. Latourette before delivery of the policy that the title to the property was in Mrs. Latourette, and in reply thereto said that that made no difference, and delivered the policy thereafter, and collected the premium, he thereby waived the provisions of the policy in regard to the title of the property being in L. Latourette.

IJpon this point there is conflict of testimony as to what the agent said, but this was settled by the jury, and we cannot disturb their verdict on a question of fact, there being undisputed testimony to support it.

It is contended that Cooley, the agent, was only a local agent, with no authority or power to waive anything, but we find he was agent to forward the applications, to receive the policy, and to deliver it and accept the premium, and that he made this waiver in delivering the policy, and that it was made while performing a duty within the scope of his agency.

In Insurance Company v. Brodie, 52 Ark. 15, this court, quoting approvingly from Insurance Co. v. Williamson, 13 Wall. 222, said: “The powers of the agent are, prima facie, co-extensive with the business entrusted to his care. * * * An insurance company establishing a local agency must he held responsible to the parties with whom they transact business for the acts and declara-, tions of the agent within the scope of his employment as if they proceeded from the principal.” In Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202, Judge Christiancy said: “Notice to the agent is notice to the-principal. * * * If he knew that powder was kept at the time of the insurance, or to be kept during its continuance, the company must be regarded as having known it also. They had power to waive the condition, and by taking the premium and issuing the policy with such notice or knowledge they must be regarded as having waived the condition which prohibited its keeping. It would be a gross fraud in the company to receive the premium for issuing a policy on which they did not intend to be liable, and which they intended to treat as void in case of loss.”

“The issue of a policy by an insurance company, with a full knowledge of all the facts affecting its validity, is tantamount to an assertion that the policy is valid at the time of its delivery, and is a waiver of the known ground of invalidity.” Brodie v. Insurance Co. 52 Ark. 16, and cases cited.

We therefore conclude that the statements in the application by L. Latourette that his title to the property to he insured was "absolute and unqualified and undivided,” though made a warranty, was waived when the agent was informed by Latourette before the policy was delivered that the title to the property was in Mrs. Latourette, to which the agent replied that it made no difference, and delivered the policy, and collected the premium thereon, and that the company is estopped to insist that this rendered the policy invalid. The judgment is therefore affirmed.

Bunn, C. J., dissents. Cooley was only a limited agent, and was expressly not authorized to waive anything for the company.