Kooistra v. Rockford Insurance

Grant, J. (after stating the facts). Was the policy legally canceled ? It is conceded that authority to procure insurance does not imply authority to consent to cancellation. This is well settled, and the citation of authorities is unnecessary. Lathrop was the agent of plaintiff. He was at no time and in no sense the agent of the defendant. She had no contract with Lathrop- for insurance in any particular company. The fact that Mr. Lathrop had delivered the policy to Mr. Kooistra, who had returned it, is of no consequence. The possession of the policy, under the circumstances, was sufficient to justify Bodwell in believing that Lathrop had authority to surrender it, and that it was under his control. Lathrop and Bodwell both understood that it was doubtful if the defendant would carry the insurance. It was entirely natural that the policy, should remain in Lathrop’s possession until the company had determined whether it would carry or cancel it. It was evidently contemplated that Bodwell, on hearing from the defendant, should notify Lathrop. When Bodwell did so, he found the policy in Lathrop’s posses [630] sion. Delivery to the plaintiff by Lathrop was not essential to the validity of the' policy. It was as valid in the possession of Lathrop as it would have been in the possession of plaintiff or her -husband. If a fire had occurred before surrender and cancellation, the defendant would have been liable, unless it was avoided by the existence of the first policy. It therefore follows that the first policy, issued by the Continental Company, was a valid one, unless it was legally canceled. Lathrop was clothed with no more authority to surrender that for cancellation than he was to surrender the one in suit. . It must follow, under plaintiff’s theory, that the first policy was in force at the time of the fire. Four policies had been issued, surrendered, and canceled while they were in the agent’s possession. Can plaintiff have her choice as to which one of these is valid? If the first was valid, all the others are void. Furthermore, she ratified the act of her agent in surrendering the policy upon the furniture procured through Mr. Bod well. Was Lathrop her agent to surrender one policy, and not the other? The law will not permit her to say, “Lathrop was my agent to surrender one policy, but was not my agent to surrender another,” under precisely the same state of facts. She left the policy in the hands of her agent, and thus placed it in his power to mislead the defendant, who acted in good faith in canceling the policy. If Mr. Lathrop failed to notify plaintiff, this is no fault of the defendant. By leaving the policy with her agent, she placed it in his power to mislead the defendant. If both parties are innocent, it is her act which has misled, and she must be the sufferer. There is no substantial dispute as to the material facts in the case. It therefore became a question of law for the court. We think the court should have directed a verdict for the defendant. The judgment is reversed, and, inasmuch as no different case can be made upon a new trial, none will be ordered. Hooker, Moore, and Long, JJ., concurred with Grant, J. Montgomery, C. J., concurred in the result.