Kooistra v. Rockford Insurance

Insurance — Surrender op Policy — Authority op Agent. Plaintiff applied to L., an insurance agent, for insurance upon her property, and was informed hy L. that the companies which he represented would not accept the risk, but that he would try to place it elsewhere. The local agents of several companies were consulted by L., and policies were successively issued, all of which were ordered canceled when reported to the companies concerned, among which companies was defendant. After a fire, plaintiff sought to hold defendant liable, upon the ground that L. had no authority to accept notice of cancellation and surrender the policy. Held, that plaintiff could not be sustained in the inconsistent contentions that L. had authority to surrender prior policies, which, unless canceled, would render subsequent insurance void, and yet, under precisely the same state of facts, had no authority to surrender the policy in suit.

Error to Kent; Adsit, J. Assumpsit by Almira C. Kooistra against the Rockford Insurance Company of Rockford, Illinois, upon a fire policy. From a judgment for plaintiff, defendant brings error. Plaintiff, the owner of a frame hotel in the village of Conklin, authorized her husband to procure, if possible, insurance upon it. He applied to one Lathrop, an insurance agent. Mr. Lathrop testified that he informed Mr. Kooistra that it was a hard risk; that he could not write it in the companies represented by him, but that he might be able to place it elsewhere. The negotiation was carried on entirely between Mr. Kooistra and Mr. Lathrop. Mr. • Kooistra’s version of the conversation was that he applied to Mr. Lathrop for insurance on the 19th of February, 1898, left with him the deeds containing the description of the property, paid him $50 upon the premium, and instructed him to procure insurance, to which Lathrop replied, “All right.” Mr. Lathrop made no attempt to secure the insurance in his companies. He first applied to one Melis, local agent of the Continental Insurance Company. Melis issued a policy, delivered it to Mr. Lathrop, and reported the risk to his company. The company refused to carry it, and ordered its cancellation. Melis notified Lathrop, who surrendered the policy for cancellation, and it was canceled. Lathrop then applied to one Bodwell, the local agent of several companies, including the defendant. Bodwell told Lathrop that he did not know whether his company would carry it, but he would try. He then wrote the policy in suit, delivered it to Mr. Lathrop, made the daily report thereof to his company, which refused to carry it, and instructed Mr. Bodwell to cancel it. Bodwell notified Lathrop of his instructions, but told him that he had written back an explanation to the company in regard to the risk. The policy was not then canceled. To this letter of Mr. Bodwell the defendant replied, still refusing to carry the risk, and instructing him to cancel it. Bod-well notified Lathrop, who then produced the policy, which was in his possession, and surrendered it to Bodwell for cancellation. It was canceled on March 17, 1898, returned to the home office of the defendant, and destroyed. Lathrop had paid Bodwell the premium, $54. Bodwell did not then return the premium to Lathrop, but by agreement it was left with Bodwell for the purpose of procuring other insurance, and Bodwell attempted to obtain insurance in another company, — the Milwaukee Mechanics’, of which he was the local agent. Bodwell wrote this policy and delivered it to Lathrop. That company promptly refused to carry the risk, and ordered its cancellation. Bodwell so notified Lathrop, and Lathrop surrendered to him that policy, which was canceled. March 3d Lathrop applied to Bodwell for insurance upon the personal property in the hotel. Bodwell wrote a policy in the Security Company of New Haven, of which he was the local agent, and delivered that policy to Mr. Lathrop. That company declined to carry it, and ordered cancellation. Bodwell so informed Lathrop, and that policy was surrendered and canceled. Upon the cancellation of the policy upon the furniture by the Security Company, Lathrop obtained a policy upon it in another company, which latter policy was in force at the time of the fire, which occurred March 25, 1898, and was paid. Bodwell returned the premium to Lathrop after the fire. Whether Lathrop returned it to plaintiff does not clearly appear. On June 10th, after the fire, plaintiff .tendered to the defendant the amount of the premium, $54. Lathrop testified that none of these policies were delivered to Mr. Kooistra. Mr. Kooistra testified that the policy in suit was delivered to him; that he retained it in his possession about a week, and then returned it to Lathrop for the purpose of procuring insurance upon the furniture. Mr. Kooistra also testified that he' knew nothing about the issuance and cancellation of the other policies. The court left it to the jury to determine whether Lathrop had authority to accept notice of cancellation, to waive five days’ notice required by the policy, and to surrender it; instructing them that,— ‘ ‘ If Mr. Kooistra instructed Mr. Lathrop to keep trying to get insurance until he found some company that would carry it, then Lathrop became the agent of the plaintiff, and notice of the cancellation of the policy given by the defendant to him was sufficient notice, and when he surrendered the policy to Bodwell it ended the liability of the defendant thereon.” Plaintiff recovered verdict and judgment.