United States Mutual Accident Ass'n of New York v. Kittenring , 22 Colo. 257 ( 1896 )

Chief Justice Hayt

delivered the opinion of the court.

At the trial an attempt was made to show that at the time of taking the application from Mrs. Kittenring, Huntington, the solicitor, gave a receipt by the terms of which the insurance, if accepted by the company, was to be in force from the date of the application. Such receipt was not produced upon the trial, but a printed blank was introduced, which was described as quite similar to the one alleged to have been executed. This evidence will not avail the plaintiff in this case for two reasons: First, the receipt is not sufficiently identified; second, it is expressly stated therein that it will not be binding upon the company unless countersigned by Pearce & Calvert, its general agents, and it was never so countersigned.

Evidence was introduced for the purpose of showing that the solicitor assured Mrs. Kittenring orally that the policy would be issued and of force from the date of the application, but the letter of Felix, written on the 8th of the following January, at the instance and request of the insured, shows that this claim was in fact an afterthought, for in this letter he declines on behalf of Mrs. Kittenring to accept a duplicate of the policy because of its date, and quotes her as saying: “ As it is dated on the 19th of December I will not accept it. I think that it is a fraud policy, and that no insurance company would be that long in getting a policy wrote up.”

In the written application made by Mrs. Kittenring, she agrees that “the association shall not be liable for bodily injury prior to the receipt and acceptance of this application and the membership fee by the society in New York.” This is an express stipulation that the policy shall only take effect from the time of the acceptance of the application by the secretary of the company. As we have stated, the attempt was made in the court below to vaiy this provision by proof of oral statements made by the solicitor at the time' the application was received by him. While such proof is far from satisfactory, yet in view of the fact that the trial court found it sufficient to warrant a decree, it becomes necessary to determine the admissibility of such evidence. Without doubt the tendency of modern authority is to hold insurance companies responsible for the representations of their agents, wherever the assured in the exercise of a reasonable caution has been misled by such agents, and it seems to be now well established by authority that an agent, appointed by an insurance company and intrusted with blank policies, which he is authorized to issue under certain conditions, if he by his conduct leads the public to believe that he is authorized to waive the conditions, the company is bound by the acts of such agent, where the proof shows that the company by acquiescence, or by its conduct, has induced the belief that the agent has such power, but this rule cannot be extended so as to interfere with the right of parties to contract, and where, as here, it is known to the assured that the agent is only authorized to solicit insurance and receive applications, which are to be forwarded to the company for its acceptance or rejection, the agent has no implied authority to bind the company by a contract for insurance, and the company is not estopped from showing the restricted character of such authority. Fleming v. The Hartford Fire Ins. Co., 42 Wis. 616; The Winnesheik Ins. Co. v. Holzgrafe, 53 Ill. 516; Ins. Companies v. Sorsby, etc., 60 Miss. 302; Walker v. The Farmers’ Ins. Co., 51 Iowa, 679; Atkinson v. The Hawkeye Ins. Co., 71 Iowa, 340; Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. St. 137; Stockton v. Firemen's Ins. Co., 33 La. 577.

We have not overlooked the case of Insurance Co. v. Wilkinson, 13 Wall. 222, but we think the foregoing statement of the law is not in conflict with any principle therein announced. In that case the agent had inserted in the application untruthful answers in reference to the cause of death of a parent of the insured. He derived the information upon which he did this from sources other than from the applicant, and the court held that in so doing and in filling up the application the solicitor was acting for the company, and not as the agent of the insured, and that such statements, although untrue, did not invalidate the policy.

Oral evidence is allowed in such cases, not to contradict the written application, but for the purpose of showing that the statement is not the statement of the insured, and that the company is estopped by the conduct of its agent from setting up that the representation is that of the assured. This is quite different from allowing oral evidence for the purpose of varying the terms of a written contract.

The uncontradicted evidence in this case shows that Huntington was merely a soliciting agent of the defendant company, authorized only to receive applications and forward tire same to the company for its approval or rejection, and the stipulation in the printed application made by Mrs. Kitten-ring advised her of the limited scope of the agent’s authority in the premises. In view of these circumstances, the admission of oral evidence for the purpose of showing that the agent waived the condition and entered into a binding contract on the part of the company, whereby the insurance was to be in force from and after the date of the application, was error.

In view of the important principle involved in this case, it is to be regretted that the court has not had the benefit of an argument on behalf of appéllee.

For the reasons given the judgment will be reversed.

Reversed.