Hulen v. National Fire Insurance

The opinion of the court was delivered by Porter, J.: The defendant insists that the failure of the plaintiff to have the additional insurance indorsed on the policy precludes his right to recover, and in the same connection the contention is made that the local agent was powerless to waive the conditions of the policy in respect of a change in the location of property and non-payment of the higher rate of premium, for the reason that he had no knowledge of the additional insurance at the time of the alleged waiver. We regard it as of no importance that the policy for the additional insurance was dated four days later than the policy sued on, if, in fact, the agent at the time he wrote the policy was informed that there would be $7700 concurrent insurance, and if it appears that it required the 2500-dollar policy to make up this amount of concurrent insurance. In the ordinary course of business it would be nothing unusual that the policies on a stock which had been insured for six or seven years, bore different dates and expired at different times. It may be that the policy in the Shawnee company was a. renewal of a similar policy in actual existence on May 8. The question is, Did' the company have, through its agent, notice of this concurrent insurance? The case: [132] was decided on a demurrer to the evidence. The testimony of the plaintiff stands admitted, to the effect that he informed the agent that the amount of concurrent insurance would be $7700 and directed him to other local agents for further information; also that at the time the local agent agreed to the transfer of the policy he asked plaintiff how much concurrent insurance was then on the stock, and was informed that the amount was the same. “A general agent of an insurance company can modify the insurance contract or waive a condition of a written policy by parol.” (Insurance Co. v. Gray, 43 Kan. 497, syllabus.) (See, also, Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Insurance Co. v. Hogue, 41 Kan. 524; Insurance Co. v. Munger, 49 Kan. 178; Insurance Co. v. Bank of Pleasanton, 50 Kan. 449; Insurance Co. v. McCathy, 69 Kan. 555; Insurance Co. v. Straughan, 70 Kan. 186; Cooper v. German-American Insurance Co., 96 Minn. 81.) The local agent was the general agent of the company within the scope of the foregoing decisions. (Insurance Co. v. Gray, supra.) We think that beyond any question the agreement of the agent that the policy should be transferred to cover the goods at the new location operated as a waiver of the condition that it should be in force only while the property was located on lot 12, and also operated as a waiver of the condition with respect of concurrent insurance, because he had knowledge of the facts. . It is argued that because the policy was canceléd by the removal of the property it could no longer bind the company unless it was reinstated, and the contention is made that there was no consideration for an agreement to reinstate. It is not difficult to discover the consideration. After the plaintiff removed his stock he wrote the company and requested that the policy be canceled and the unearned premium returned to him. The company, evidently desirous of retaining in its [133] possession the unearned premium, replied by letter and gave him a very cordial invitation to see the local agent and have his policy transferred to cover the property at the new location. He accepted the invitation, they retained the money, and are not in a position to. say that there was no consideration for the agreement to reinstate. In regard to the failure of the plaintiff to pay the higher rate of premium, it is sufficient to say that there was no obligation on his part to pay it until it was demanded by the company. In the letter in which the company suggested that he see the local agent' nothing was said about a higher rate, and when the local agent talked with the plaintiff and consented that the policy should be considered as transferred to the new location there was no request for any additional or higher rate of premium. A case very similar in the facts is Cooper v. German-American Insurance Co., 96 Minn. 81. It was there said: “The duly authorized agent of a fire-insurance company, having power to consent to the removal of the location of insured property and to transfer the policy, may by oral agreement consent to such removal and make such transfer, and if such agreement is made the policy does not become void but continues in force. The fact that the rate of insurance is greater at the new location does not relieve the obligations of the company under the policy, provided the insured agrees and holds himself in readiness to pay the additional premium. The duty is upon the agent .to ascertain what the increased rate is and make demand upon the insured therefor.” (Syllabus.) It follows from what is here said that it was error to sustain the demurrer, and the judgment is reversed and the cause remanded for further proceedings.