North River Ins. of New York v. O'Conner

Opinion by BLEAKMORE, C. This action was commenced in the district court of Oklahoma county by Pat O’Conner to recover *302 against the North River Insurance Company of New York on a standard form policy issued by it insuring him against loss or damage by fire to a certain stock of merchandise in the sum of $1,000. The parties appear and are referred to here as in the trial court. Plaintiff recovered, and defendant has appealed. Eire originating in another building was communicated to that in which the stock covered by the policy was situated, causing loss of more than $5,000. The policy contained what are commonly known as the “inventory, book warranty, and iron safe clauses,” and provides: “The assured will keep such books and inventories, and also the last preceding inventory, securely locked in a fireproof safe at night and at all times when the building mentioned in this policy, or the portion thereof containing 'the stock described therein, is not actually open for business; or, failing in this, the assured will keep such books and inventories at night, and at all such times, in some place not exposed to fire which would ignite or destroy the aforesaid building; and in case of loss the assured specifically warrants, agrees and covenants to produce such books and inventories for the inspection of said company. “In the event of failure on the part of the assured to keep and produce such books and inventories for the inspection of said company, this entire policy shall become null and • void, and such failure shall constitute a perpetual bar to any recovery thereon. * * * “This policy is made and accepted, subject to the following stipulations and conditions together with such other agreements or conditions as may be indorsed herein, or added hereto, and no officer shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provision and condition, no officer, agent or representative shall have such power or be deemed to have held or waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privileges or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. “This policy shall not be valid until countersigned by the duly authorized agent of the company at Geary, Okla., this 23d day of November, 1912. H. G. Bailey, Agent.” It is apparent that the policy sued on was issued in blank form, signed by the president and secretary of the company, and filled in, countersigned, and delivered by its agent. The assured failed to comply with the provisions of the “iron safe clause,” and his inventory and books were destroyed with the stock of merchandise. It is pleaded and proved that with specific knowledge of the fact that plaintiff had no fireproof safe in which to keep his books and inventories, and did not intend to keep same at some other place not exposed to fire which might ignite or destroy the building in which the insured property was located, but, on the contrary, purposed to keep such books and inventories at night in said building, where he and his wife slept, the agent of defendant company represented to plaintiff, both before and after the complete execution and delivery of the policy, that if he and his wife slept and continued to sleep in said building, he would not be required to keep his books and inventories in a fireproof safe, or at some other place at night; that the fact of his sleeping in such building was a sufficient compliance with the terms of the policy; that plaintiff relied upon such representations and was induced thereby to accept the policy, pay the premium therefor, and keep his books and inventories in such building at night where he and his wife continued to sleep. The question presented for our consideration is whether the knowledge and representations of its local agent who was authorized to issue the policy are binding upon the defendant. In Western Nat. Ins. Co. v. Marsh, 34 Okla. 414, 125 Pac. 1094, 42 L. R. A. (N. S.) 991, where hundreds of authorities are collated, an action on a policy containing the provision : “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy” —it was held: “When a local agent of a fire insurance company, who has the power to accept a risk and deliver the policy of insurance, at and prior to the time of the delivery of the policy, is advised and has full knowledge of the fact that other insurance upon the property is in force, and with that knowledge accepts the premium and delivers the policy, such policy is binding upon the company, notwithstanding the fact that it contains a provision prohibiting the existence of concurrent insurance without written consent thereto indorsed on the policy, and notwithstanding it contains a provision that none of the company’s officers or agents can waive any of its provisions, except in writing indorsed on the policy.” And in the body of the opinion it is said: ii* * * if, therefore, this agent have authority to make the contract of insurance, and authority to indorse thereon the consent of the company to the existence of other insurance, it seems to us that when he is advised of f-rus otnei- insurance, and has full *303 knowledge thereof, and executes and delivers the contract and receives the premium from the insured, the company is bound by his knowledge, and that it is immaterial whether we call it a waiver or an estoppel, or any other name.” In Germania Fire Ins. Co. v. Barringer, 43 Okla. 279, 142 Pac. 1026, it is held: “Where the local agent of a fire insurance company, who has power to accept the risk and deliver the policy of insurance, at and prior to the time of its delivery in renewal of another policy has knowledge of the fact that, intermediate the time of the issuance of the original and renewal policy, the title to the property whereon the insured building was located had changed, assuming that fact to be material to the risk, and that the insured failed to mention that fact at the time of the delivery of the renewal policy, held that, after having received the premium and delivered the policy, the same is binding upon the company, notwithstanding the fact that it contains a provision that none of the company’s officers or agents can waive any of the provisions, except in writing indorsed on the policy.” In Springfield Fire & Marine Ins. Co. v. Halsey, 52 Okla. 469, 153 Pac. 145, it is held: “When a local agent of a fire insurance company, who has the power to accept a risk and deliver the policy of insurance, at and prior to the time of the delivery of the policy is advised and has full knowledge of the fact that a portion of the property insured is incumbered by a chattel mortgage, and with that knowledge accepts the premium and delivers the policy, such policy is binding upon the eompanv notwithstanding it contains a provision that none of the company’s officers or agents can waive anv of its provisions, except in writing indorsed on the policy.” In Conley v. Northwestern Fire & Marine Ins. Co., 34 Okla. 749, 127 Pac. 424, it is held: “In an action brought on a fire insurance policy written prior to statehood in the Ind!nn Torritory.it was alleged in the petition tint the defendant company knew that the fee-s!mple title to the land upon which the insured building was situated was in the Choctaw and Chickasaw Tribes of Indians, and not in the plaintiff, and that defendant company for a long time prior thereto had been engaged in the fire insurance business in said territory, and had full knowledge of the character of land titles therein, and that thereby the condition of the policy with reference to sole and unconditional ownership and fee-simple title to the plaintiff was waived. Held, that the petition stated a good cause of action, and that the court committed reversible error in sustaining defendant’s demurrer to plaintiffs petition. Under the facts charged, the defendant, company was estopped from claiming a forfeiture under the terms of the policy.” See, also, Rochester German Ins. Co. v. Rodenhouse, 36 Okla. 378, 128 Pac. 508. In the instant case the insurer appointed an agent, vouching, impliedly at least, for his competency and trustworthiness, who, with full knowledge of all the facts which might be, and now are, insisted upon to avoid the same, completed the execution and delivered the policy in suit to the assured who, relying upon the truth of the representation of such agent, was induced thereby to pay the premium, accept the policy, and pursue a course of conduct conformable to such representations, believing himself indemnified. In such circumstances, where the company has received and retained the i>remium recognizing the existence and validity of the contract until loss has occurred thereunder, it will not be' thereafter permitted to escape liability by denying the integrity, and repudiating the acts of the agent. The company is estopped to invoke in avoidance the very thing its agent represented to be compliance with the contract. In Niagara Fire Ins. Co. v. Brown, 123 Ill. 356. 15 N. E. 166. it is held: ‘A waiver by an insurance agent duly authorized to issue and deliver policies and receive premiums of the conditions of a printed slip, attached to the policy and signed by^ the agent alone, and providing that the policy shall be void for failure to keep the inventories and books of the assured in a fireproof safe, is binding upon the company.” See, also, Carp v. Queen Ins. Co., 116 Mo. App. 528, 92 S. W. 1137. It will be seen from the foregoing decisions that the established rule in this jurisdiction is that the knowledge of an agent of a fire insurance company who has power to accept a risk and countersign and deliver a policy of insurance is the knowledge of and binding upon the company, and, notwithstanding provisions to the contrary in the policy, may waive compliance with certain of its terms on the part of the assured, or may estop the. company to insist upon a forfeiture for failure to comply therewith. Such rule must on principle apply alike to all provisions of the contract inserted for the benefit of the com-pans’’, including the “iron safe clause.” The judgment of the trial court should be affirmed.