National Fire Ins. Co. v. Oliver , 204 S.W. 367 ( 1918 )

In support of the complaint made here that the trial court erred when he refused to instruct the jury to find in appellant's favor, it is insisted that it conclusively appeared from the testimony:

(1) That the policy issued by appellant was not to be effective until the one issued by the Northern Assurance Company was canceled. We agree it so appeared.

(2) That the policy issued by said assurance company had not been canceled when the fire occurred. The policy contained a provision that it might "be canceled at any time at the request of the insured, or by the company by giving five days' notice of the cancellation." It was not pretended that appellee had requested the assurance company to cancel the policy, or that that company had effected a cancellation thereof by giving the notice specified. The contention on the part of appellee was, it seems, that Mrs. Croley acted for him when she arranged with appellant to take over the risk carried by the assurance company on his property, and that he, therefore, under the circumstances of the case, was in the attitude of consenting to the cancellation of the policy demanded by the assurance company. We think the contention was not without support in the testimony. By arranging with Mrs. Croley "to take his insurance and keep it up for him," as he testified he did, appellee authorized her to do for him everything reasonably necessary to be done to keep up the insurance. The assurance company having determined to exercise the right it had to cancel the policy it had issued on the property, it was necessary, in order to "keep up the insurance," to arrange with some other company to carry the risk. Incidental to this was the cancellation of the policy issued by the assurance company, for appellant's assumption of the risk was to become effective only when the assurance company ceased to carry it. We are of opinion, therefore, that it sufficiently appeared that Mrs. Croley had power to bind appellee by consenting to a cancellation of the policy, and that, acting for him, she consented when she arranged with appellant to take over the risk. We think the testimony warranted a finding that the liability of the assurance company ceased, and the liability of appellant began, when Nisbet agreed with Mrs. Croley that appellant would take over the risk on the property. 22 Cyc. 1447, and authorities there cited; 14 R.C.L. 849, 1010; 2 Joyce on Ins., p. 1482; Johnson v. Ins. Co., 66 Ohio St. 6, 63 N.E. 610; Assurance Co. v. McAlpin, 23 Ind. App. 220, 55 N.E. 119, 77 Am. St. Rep. 423; Ins. Co. v. State, 76 Ark. 180, 88 S.W. 917, 6 Ann.Cas. 440; Dibble v. Assur. Co.,70 Mich. 1, 37 N.W. 704, 14 Am. St. Rep. 470; Stevenson v. Ins. Co.,17 Cal. App. 280, 119 P. 529. In Ferrar v. Western Assur. Co.,30 Cal. App. 489, 159 P. 609, 611, where it appeared that one Coleman had been requested by Mrs. Plier the owner of the property, "to take care of her insurance and to see that she was covered to the amount of $1,000," the Supreme Court of California said:

"We are satisfied that the direction by Mrs. Plier to Coleman * * * made him * * her general agent to keep her insured, to the extent of $1,000 in respect to the property involved. Being her general agent for this purpose, we think he was authorized, as an incident of his employment, to accept and act upon a notice of cancellation."

Having determined that there was testimony warranting a finding that Mrs. Croley was authorized to act for appellee in consenting to a cancellation of the policy issued by the assurance company, and therefore that the trial court did not err when he refused to instruct the jury as complained of in the assignment, we need not determine, and do not, whether that court, had there been no such testimony, should have refused to so instruct the jury, on the ground that there was testimony which would have supported a finding that appellee supplied by a ratification of her act any lack of authority on the part of Mrs. Croley to bind him by consenting to the cancellation of the policy issued by the assurance company. The contention on the part of appellant is that the ratification was ineffective for any purpose because it occurred after the property had been destroyed by fire. All we care to say about that is that, if the holding of the Court of Civil Appeals in Ins. Co. v. Dalton, 175 S.W. 459, relied upon by appellant as supporting its contention, should be construed as denying to the insured in a case with facts like this one a right to assert that such a ratification is binding on the insurer, we are inclined to think it is wrong and against the weight of the authorities. 2 Joyce on Ins., § 642, and authorities there cited; Marqusee v. Ins. Co., 198 F. 475, 119 C.C.A. 251, 42 L.R.A. (N.S.) 1025; Ferrar v. Western Assur. Co., 30 Cal. App. 489,159 P. 609, 611; Todd v. Ins. Co.,2 Ga. App. 789. 569 S.E. 94; Boutwell v. Ins. Co.,193 N.Y. 323, 85 N.E. 1087.

The Judgment is affirmed.