Henschel v. Oregon Fire & Marine Insurance

The opinion of the court was delivered by Stiles, J. — The respondent’s goods were insured by the appellant “while contained in the two-story and basement frame building” described, and desiring to move them to abuilding several blocks distant, in the City of Tacoma, he delivered his policy to appellant’s agent, who promised to indorse appellant’s consent to the removal upon the policy, in writing, and return it to him. Before the indorsement was made the building to which the goods had been in the meantime removed was burned, and a loss occurred. The agent then indorsed a cancellation upon the policy, the appellant disclaimed liability, and in this action respondent recovered the full amount of the insurance. The sole contention here is as to the effect which should be given to the following clause in the policy: “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon, or added hereto, and no officer, agent or representative of this company shall have power to waive any provisions or conditions of this policy, except such, as by the terms of this policy, may be the subject of agreement indorsed herein or added hereto; and, as to such provisions and conditions, no officer, agent or representative shall have such power, or be deemed, or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege, or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” The appellant substantially claims for this clause the construction that until its consent was physically indorsed upon the paper the property of the respondent was unpro [478] tected in its new location, notwithstanding the agreement of the agent to indorse the necessary consent, and his receipt and retention of the policy for that purpose. The respondent claims that the conduct of the agent estops the appellant to say that the proper indorsement was not made. Appellant’s counsel have presented us many eminent authorities upon the subject of the waiver of conditions in such contracts by agents, but with due respect to the learning of counsel and the force of the authorities they produce, we cannot regard this as a case of technical waiver. We do not find that the respondent is proposing to strike from the policy a single line or word, but that, fully recognizing the binding force of the extremest stipulations against him, lie went to the agent and himself proposed a strict compliance with them. To this proposition the agent assented and agreed, not that anything should be waived, but that he himself would indorse upon the contract the words necessary to cover the goods in their new location; and now the respondent, invoking the equitable rule that since he has relied upon the promise made to him, what was agreed to be done shall be taken as having been done, claims that the contract is what it, but for the negligence of the agent, undoubtedly would have been. The only material question then is whether the agent had power to make the required indorsement in writing. He assumed to have it, for he agreed to do it, and received the policy for that purpose, thus lulling the respondent into a feeling of security, and in all probability preventing him from procuring insurance elsewhere. And, while there is no evidence on the subject disconnected from the policy itself, we think that, as a fact, he did have the authority. The appellant was a foreign corporation whose agent he was at Tacoma. This policy was, and presumably all policies issued by him were, in printed form, with the signa [479] tures of the president and secretary stamped, and only requiring the written signature of the agent to make it complete. He was a local general agent, who, in the absence of some restriction of his authority brought home to the respondent, was as to him the appellant itself. Maryland F. Ins. Co. v. Gusdorf, 43 Md. 506, is a case on all fours with this one in pleadings, conditions of policy and facts, except there the facts tended to show a waiver only. The court, speaking of the position of the plaintiff, after receiving the assurance of the company that he could remove his goods without the indorsement, and acting upon it, said: “By so acting he did that which prejudiced his interest under the policy. He thereby gave the company the advantage of retaining the premium without further continuance of the risk, and also the advantage of setting up this defense against their liability after the loss had occurred. Would not the success of this defense operate a fraud upon the assured? W e think it clear the company ought to he and are estopped from making it. Whilst the law affords ample protection to these companies, as well as to individuals, against frauds, 'misrepresentations and breaches of warranty, it will not and ought not to help them to perpetrate frauds upon those with whom they make contracts, in which good faith on both sides, as well in their continuance, as origin, has always been regarded as a ruling consideration.” So in this case, the appellant, having received the premium for a year’s insurance, now, without any offer to return any portion of the unearned premium, sets up what we deem an unconscionable defense when it claims that after actually insuring the respondent less than thirty daysi the neglect of its own agent to do what he ought to have done should relieve it of all liability. Judgment affirmed. Scott and Dunbak, JJ., concur.