November 27, 1950.
APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY, CLAUDE E. CURTIS, J.
B. G. Dilworth, E. W. Bennett, Salem, for appellant.
Sievers Reagan, St. Louis, Earl E. Roberts, Steelville, for respondent.
This is a suit on a contract of accident insurance by named beneficiary. It was filed in the Circuit Court of Dent County, Missouri, March 15th, 1948, on motion, transferred to Crawford County, Missouri, where it was tried before a jury on May 17th, 1949, and a verdict returned for plaintiff for $2,765.81.
On the 17th day of August, 1949, the court sustained a motion for new trial and, from this judgment the cause was appealed to this court.
The petition was in two counts and brought in the name of C. C. Halbrook and Rose Halbrook. The cause was dismissed as to C. C. Halbrook and, at the end of all the testimony, plaintiff elected to stand on the first count.
The first count of the petition states that Wilbur Ray Halbrook entered into a contract with defendant, Atlas Life Insurance Company, September 15th, 1947, wherein he was insured against accidental death in the sum of $2500.00, and plaintiff was made beneficiary; that on that date Halbrook made application, in writing, for said insurance and at the time of such application it was agreed between insured and defendant-company that the insurance application would be accepted and approved by defendant and that said insurance would become effective and binding on defendant-company from the date of application; that defendant-company, in consideration of the payment by insured of the first quarterly premium of $27.00, in advance, agreed that said contract of insurance would become immediately effective and that said application would so provide in writing and would be accepted and approved by defendant and that defendant would evidence this contract by its policy of insurance issued to applicant.
The petition states that prior to the making of said contract of insurance and the written application therefor, defendant, on divers dates, by its duly authorized managers, agents, servants and employees, solicited and induced Wilbur Ray Halbrook to refrain from obtaining other insurance on his life, which deceased intended to do, by representing to him that his application for insurance would be accepted and approved by defendant and that a policy of insurance evidencing and embodying the terms agreed upon would be issued to him and that the insured, believing and relying thereon refrained from securing other insurance and that by reason of said assurances and representations, Wilbur Ray Halbrook was induced to accept said contract in lieu of obtaining other insurance and in lieu of reinstating his policy in the National Service Life Insurance.
The petition pleads that on September 20th, 1947, Wilbur Ray Halbrook was accidentally killed in an automobile accident; that defendant was notified of the accidental death and requested to furnish proper blanks for making proof of such death; that defendant refused to furnish plaintiff with blanks to make proof of death and denied all liability under the contract.
Then the petition pleads that the contract of insurance and the written application sued on herein was, in fact, accepted and approved by the defendant and that a policy of insurance was issued evidencing such fact, but said policy was never received by plaintiff, and, under the facts stated herein, defendant is estopped from denying the making of the insurance contract pleaded, the acceptance and approval thereof and of the written application therefor and its liability thereon.
The petition pleads that demand for payment has been made and by the defendant refused; that plaintiff has complied with all the terms and conditions of said contract of insurance. It then prays for judgment for $2500.00, plus $27.00 premium paid and 6% interest from the date the amount became due. It asks for damage for vexatious delay and for attorney fees.
Defendant, in its answer to count one of plaintiff's petition denies all the allegations alleged therein, upon which she relies for recovery.
The jury returned a verdict finding the amount due plaintiff, on the contract, to be $2500.00, and the premium paid to be $27.00, and the interest due thereon $238.81, making a total judgment of $2,765.81, and judgment was entered by the court in favor of plaintiff and against defendant on the 17th day of May, 1949, in the sum of $2,765.81.
The defendant filed a motion for judgment or in the alternative for a new trial, which motion was taken up by the court on the 17th day of August, 1949, and sustained because the evidence offered by the plaintiff was insufficient to make a case for the jury, and because the court erred in failing and refusing to sustain defendant's motion for a directed verdict at the close of the whole case.
Appellant, (plaintiff below) under points and authorities, complains that "the trial court erred in sustaining defendant's motion for a new trial for the reasons that plaintiff made a prima facie case under the pleadings, and there was no error by the trial court in refusing defendant's motions for judgment, either at the close of plaintiff's evidence or at the close of the entire case."
The only issue raised by appellant is the sufficiency of the evidence to support the judgment.
The respondent (defendant below) in its brief and argument, urged three grounds upon which it contends that the court's ruling, in sustaining its motion for new trial, was proper.
"I. The appellant cannot recover on the alleged oral contract of insurance, because the soliciting agent had no authority to make an oral contract of insurance.
"II. Appellant is bound by the terms of the application signed by Wilbur R. Halbrook.
"III. Respondent is not bound by testimony of former soliciting agents as to their understanding as to the meaning of policy provisions."
In this opinion we will refer to the appellant as plaintiff in the case and to the respondent as defendant.
The evidence offered is as follows:
The defendant, Atlas Life Insurance Company, was organized under the laws of Oklahoma to engage in the business of life, health and accident insurance, and authorized to do business under the laws of Missouri.
On September 15th, 1947, defendant's soliciting agent, Jesse J. Rushing, took from Wilbur Ray Halbrook, a resident of Crawford County, Missouri, a written application for a health and accident insurance policy in the sum of $2500.00, in defendant-company. This application is as follows:
"Application to Atlas Life Insurance Company
"Use Black Ink or Indelible Pencil — This is to be Photographed
"1. What is your full name? Mr.
Mrs. Wilbur R. Halbrook Miss (Print Name in Full)
"2. What is your age? 23 Date of birth? Oct 31, 1923 Color ____ Place of birth? Mo. (State or County) Height? 5-11 Weight? 200 Pounds Sex? ____
"3. What is your residence address? Steelville, Mo. Street County? Craford City or Town? Steelville State? Mo. Address to which premium notices are to be sent? Steelville, Mo.
"4. Name of beneficiary? Rose N. Halbrook (Print full First, Middle and Surname) Address? Salem, Mo. Relationship? Mother
"5. Are you member of firm or employe? Member Name of firm? White House Tarven Nature of business? Tarven Location of firm? Steelville Mo. (Street, City and State)
"6. What is your occupation? Part owner Bartender
"7. What are all of your duties connected therewith? Part Owner and serving costmers
"8. What disability or accidental death insurance do you carry? What companies and amount? None Have you any applications for life or disability insurance pending? If so, name companies and amounts No
"9. Has any application ever made by you for life or disability insurance been declined, postponed or rated up or has any life or disability insurance issued to you been cancelled? No Has any renewal or reinstatement of life or disability insurance been refused? If so, give full particulars No
"10. Have you ever made claim for or received indemnity on account of any injury or illness? If so, what companies, dates, amounts and causes. No
"11. Are you, to the best of your knowledge, sound physically and mentally? Yes Are you maimed or deformed? No Have you any impairment of sight or hearing? No Have you ever had a hernia? No Are your habits correct and temperate? Yes
"12. What form of policy do you desire? I D 105 series C Rider ____ What Regular Monthly Indemnity are you applying for? $100.00 Are you applying for full indemnities from the 1st day? Yes What Principal Sum are you applying for? $2500.00 What is the premium? $27.00 1st payment $17.00 quarterly
"13. Have you ever had any of the following diseases: Rheumatism, neuritis, arthritis, sciatica, epilepsy, appendicitis, diabetes, any kidney trouble, cystitis, any disease of the brain or nervous system, heart disease, tuberculosis, bronchitis, goitre, gall bladder trouble, any stomach trouble, any intestinal trouble, cancer, syphilis, high or low blood pressure, tonsilitis, rectal trouble, malaria? Name diseases, dates and length of disability No Has any member of your family ever had tuberculosis? No
"14. Have you received medical or surgical treatment or had any local or constitutional disease not mentioned above, within the last five years? No Date? No For? No Lasting? No (Year and month) (Nature) Name of physician No Address? No
"15. Have you ever been operated on by a physician or surgeon? Yes Date? 1944 For? Appendicitis Result? good Name of Physician U.S. Army Dr. Address? U.S. Army
"16. Do your average monthly earnings exceed the monthly indemnity payable under the policy now applied for and under all other policies and certificates of disability insurance now carried by you? Yes What are your average monthly earnings $ Exceeds
"17. Do you understand and agree that no insurance will be effected until the policy is issued? Yes
"18. Do you hereby apply to the ATLAS LIFE INSURANCE COMPANY for a policy to be issued solely and entirely in reliance upon the written answers to the foregoing questions, and do you agree that the Company is not bound by any statement made by or to any agent unless written herein; and do you hereby authorize any physician or other person who has attended or may attend you to disclose any information thus acquired? Yes ____
"Dated at Steelville, Mo. this 15 day of Sept 1947
"Signature of Applicant x Wilbur R. Halbrook Read all questions and answers.
"Premium paid on this application covers all costs of insurance to Jan 1 1948. Did you ask the applicant all the questions on this application and are all the answers shown, his or her personal statements? Yes
"Signed Jesse J. Rushing Soliciting Agent. Geo. R. Dickens" ID 35
Across the face of the application is the following:
"Check or Currency Must Accompany Application"
At the time of the signing of the application for insurance, Wilbur R. Halbrook paid to Jesse J. Rushing, $27.00, covering the cost of insurance for the first quarter and received a receipt for said payment which receipt is as follows:
"Plf Ex F — 5/17/49 — A. L F) Sept 15 1947 No. ___ Received of Wilbur R. Halbrook
27 ..................... 00 DOLLARS For Atl es Life Ins. Co. 100 Previous Balance $ 27.00 Amount Paid $ ______ Balance Due $ ______
By (Sgd) Jesse J. Rushing"
Agent Rushing turned insured's application over to George R. Dickens, District Manager, on the day after accepting, Dickens stamped his name on the bottom of page 3 thereof and, on the 22nd day of September, 1947, turned the application over to defendant's general agent, George A. Krause, who had an office in the Cotton Belt Building in St. Louis.
The evidence is undisputed that the application of insured never reached the home office of defendant, was never approved and no policy of insurance issued; that Wilbur Ray Halbrook was killed, by accident, September 20th, 1947. Demand was made for payment under said insurance policy and defendant denied liability thereon. The defendant tendered back to plaintiff the premium paid by insured.
The evidence is that agent Rushing, prior to and at the time of the signing, by the deceased Halbrook of the written application for insurance, represented to Halbrook that if he would pay the first quarterly premium on the insurance applied for in the application, to-wit, $27.00, the insurance would become immediately effective. Rushing stated that he filled in the answers to the questions on the application, getting the information from Halbrook. He stated: "I just asked him the questions." He gave this testimony:
"Q. Did you ask him the answers to questions 17 and 18 or did you fill those out yourself? A. No, I don't believe I read that to him."
Rushing testified that he began work for defendant-company in March, 1947; that the district manager, George Dickens, and George A. Krause went with him to show him how to write insurance prior to September 15th, 1947. He gave this testimony:
"Q. Now, Mr. Rushing, what instructions, if any, did you have with reference to assurance statements that you were to make to applicants for insurance as to when accident insurance was to be effective? A. Well, they went into effect immediately, that is what I was told.
"Q. Who gave you that instruction, Mr. Rushing? A. Mr. Dickens, George R. Dickens, and George A. Krause.
"Q. Was that conditioned upon the payment of any premium? A. That was if you paid the full extended quarter."
The witness testified that he went with George A. Krause soliciting and selling insurance a few times and that they had made representations to the customers that the insurance would become effective immediately. The witness gave this testimony:
"Q. Now, Mr. Rushing, on the 15th of September, 1947, what if anything did you tell Mr. Halbrook when he paid you the $27.00 and signed the application would be the effective date of his accident coverage with defendant's insurance company? A. Well, I told him that he was protected as of then and if something happened to him he was — well, I think the way I put it at that time if he was to walk out the door and fall or break a leg or something like that that he would be covered, I believe that was the conversation that went on between us.
"Q. Did you say anything to him about when he would be covered if he were accidentally killed? A. Well, the same time that applied for accidents, and 30 days later for sickness."
The witness testified that he was employed by George A. Krause for the company.
The evidence shows that agent Rushing was supplied with applications for insurance by the company and literature explaining the policy; that he never countersigned a policy and gave it to the person who bought it; that he merely filled out the application forms and turned them over to Mr. Dickens, the district agent, who would send them to somebody else and when the policy was issued he would deliver it to the purchaser. He stated that every time he took an application for insurance he filled out the written application furnished by the company. He stated that it sometimes took a week for the application to reach the company before the policy was issued and that the renewal date of these policies was always on the first of the month. He testified that on the back of the application furnished by the company there are written instructions that the first quarter pays for the balance of the month in which the policy is issued plus three full months. Then this question was asked:
"Q. Then the next instruction, underwriting Information on the back of this application `Effective date of policies — 12 o'clock noon on date of issue for accident and thirty days later for sickness.' That is the effective date of the policy, wasn't it? A. That was on there I think.
"Q. And that was on the application that you filled out for Mr. Halbrook, wasn't it? A. That's right."
The evidence shows that this instruction was written on the back of the application for insurance signed by Halbrook.
The witness testified that he never received any written instructions from the company that the terms of the contract were changed in any way. He stated that he entered into a written contract of employment with Mr. Krause, February 20th, 1947, and that his services were terminated in February, 1948, and that he is not working for the company now.
George R. Dickens testified that he was employed by the Atlas Life Insurance Company, defendant, in October, 1945, and worked until February 1948; that his title was District Manager, which included Dent and Crawford Counties as a part of his territory; that George A. Krause, whose office was in St. Louis, was superior to him in the employment of the company. He stated that Mr. Krause was general agent of the company and his territory was the state of Missouri. He stated he was acquainted with C. Fred Freel, who was supervisor of agencies all over the country and had office in Oklahoma City. He testified he attended a meeting in St. Louis in which Mr. Freel was present, George A. Krause and Jesse J. Rushing; that this meeting was a general meeting of instructions and telling agents how to go out and get business; that he was ordered to attend the meeting by his superior; that Mr. Freel instructed the agents present that, any time when they sold insurance and collected the full first extended quarter, the accidental means of that policy went into immediate benefit as of that time and sickness began 30 days later. He stated that meeting was after September 15th, 1947.
The witness testified he had been with Mr. Krause when he solicited insurance prior to September 15th, 1947, and that Mr. Krause represented to the applicants that the accident insurance went into effect immediately. The witness testified he and George Krause discussed, with Mr. Freel, the matter of the effective date of the accident policies on the day of the meeting in St. Louis. He stated that was in 1948, but, later, when asked if he wasn't out of the company in February, 1948, stated it must have been the latter part of 1947.
This witness testified he made representations that the accident insurance would become effective immediately to customers, under authority from George A. Krause; that he went with Mr. Rushing at times before September 15th, 1947, and gave him instructions in writing policies and that the accident insurance would be effective immediately.
This witness testified that he had talked to Halbrook, prior to September 15th, 1947, but that such conversation was not in connection with trying to sell him insurance but on other matters; that he was not present when Rushing discussed selling said insurance to Halbrook.
The evidence fails to show the company ever paid any insurance to any one on any contract for accident insurance before the policy was issued.
The written contracts of employment under which Jesse J. Rushing, George R. Dickens and George A. Krause worked for the company were introduced in evidence.
The written contract, under which George A. Krause worked, was made in the name of "George A. Krause and Leona Krause D.B.A. Krause Insurance Agency." Section I is as follows:
"The Company hereby authorizes the agent to procure and transmit applications for Health and Accident Insurance on the Intermediate Plan, countersign and deliver the policies, collect and pay over to the Company the premiums on the insurance so effected, all in accordance with this agreement, the Company's manuals and rate books, and the general policies and practices of the Company. The title of such agent under this agreement shall be General Agent of the Intermediate Department."
This contract provides that George A. Krause shall have the right to appoint subagents, solicitors or brokers, naming the counties in Missouri, which included Crawford County.
It provides that compensation shall be paid by giving a commission on the premiums on the policies solicited.
Section 4 of this contract states that the agent shall act as an independent contractor and the contract does not create the relation of employer and employee between the company and the agent or between the company and any sub-agent. This paragraph provides that, "The Agent shall be free to exercise Agent's own judgment as to the persons from whom Agent will solicit insurance and the time and place of solicitation. The Agent shall have fullest discretion as to the methods and means of operation except that the authority of the Agent under this agreement shall not extend to or affect the general practices and policies of the Company."
Section 5 of the contract provides:
"The Agent shall pay to the Company all premiums arising out of insurance submitted under this Agreement, whether or not collected by the Agent from the insured and shall hold all premiums as trustee for the Company until delivered to the Company, * * *.
"The Agent shall remit the first premium to the Company on the day received with each application submitted. * * * Where the Company cancels or declines to issue or renew a policy for which premium has been received from the Agent, the Company may return to the Agent the said premium and the Agent shall immediately return to the applicant the full premium paid by the applicant."
Section 6 is as follows: "The Agent shall not bind or obligate the Company beyond the limitations laid down herein and in the written or printed instructions issued by the Company from time to time; nor alter, modify, waive or change any of the terms, rates or conditions of the Company's policies or contracts."
This contract provides, under Section 16, that the agent shall not offer any inducement whatever not specified in the policy.
The written contract of employment of Jesse J. Rushing provides, in Section 1, as follows: "The General Agent hereby authorizes the Agent to solicit and transmit applications for health and accident insurance embodied in the Intermediate Department Plan of Atlas Life Insurance Company, an Oklahoma corporation, hereinafter called the Company, deliver the policies, collect and pay over to the General Agent the premiums, all in accordance with this agreement, the Company's manuals and rate books, and the general policies and practices of the Company and the General Agent."
Section 4 of this contract provides that the agent shall act as an independent contractor and section 5 provides that the agent shall pay to the general agent all premiums arising out of insurance submitted and shall hold the premiums as trustee for the company until delivered to the general agent on the day received with each application submitted.
Section 6 is as follows: "The Agent shall not bind or obligate the Company or General Agent beyond the limitations herein and the written or printed instructions issued by the Company from time to time; nor alter, modify, waive or change any of the terms, rates or conditions of the Company's policies or contracts."
The same provisions are contained in the written contract offered in evidence between the company and George R. Dickens.
There was introduced in evidence the written agreement, made on the 20th day of February, 1947, between George A. Krause called General Agent, and Jesse Rushing.
C. Fred Freel testified that he, at no time, knew of or gave any instructions to the defendant-company's agents mentioned in evidence at the meeting in St. Louis or at any other time, that they should make any representations as to the effective date of the insurance or gave any authority to such agents to represent to customers that the insurance would become immediately effective upon the signing of the application by the insured.
Under points and authorities plaintiff's first contention is that the evidence was sufficient to make a prima facie case and that the cause was properly submitted to the jury. With this contention we cannot agree.
We cannot lend assent to the construction placed on the evidence by plaintiff leading up to the signing of the written application for insurance in the defendant-company. It seems clearly apparent that the applicant, Wilbur Ray Halbrook, was discussing a written policy of insurance rather than a final parol contract. There is nothing in the testimony to indicate that the parties did not understand that it was necessary to make a written application to the company in order to secure a binding contract of insurance and that it was necessary to answer the questions in said written application upon which such contract would be based. They, at all times, referred to the policy of insurance. He paid the premium necessary to secure such policy. The agent made no request to the company to issue any other policy than the one applied for or in any different terms and the application was passed through the regular channels necessary to secure such policy.
So, we hold, that the evidence will not support plaintiff's alleged contention that a parol contract between the deceased Halbrook and defendant-company was complete and final when the written application was signed and the first quarterly premium paid.
It is held in Distassio v. American United Life Insurance Company, 238 Mo.App. 279, 179 S.W.2d 610, that where conversation during which oral contract of life insurance was allegedly made and the signing of application for life policy were contemporaneous, the insured was charged with notice and knowledge of any restrictions on the agent's authority contained in the application regardless of whether she actually read it.
This case also holds that a principal may limit the authority of a general agent as well as a special agent and that where one who deals with an agent, knowing that he is clothed with a circumscribed authority and that his acts transcend his powers, cannot hold the principal.
We hold that where the applicant, for accident insurance on his life, signed an application for a policy of insurance which provides that no insurance will be effected until the policy is issued and agrees that the company is not bound by any statement made by or to any agent unless written therein, that he is chargeable with knowledge of the limitations on the agent's authority for making a parol agreement that the insurance would become effective on the date of the signing of the application, especially where the written agreement, contained in application, so signed by the insured, specifically provides that the insurance will not become effective until the application is approved and a policy of insurance issued by the defendant-company.
In Banks v. Clover Leaf Casualty Co., 207 Mo.App. 357, 233 S.W. 78, 80, where the suit was based on an oral contract of accident insurance entered into between the insured and agent of the insurer, the court held that all antecedent or contemporaneous oral agreements are merged in the written contract of accident insurance, and cannot be admitted to abrogate or vary its unambiguous terms. The court further made this statement as to the law: "Plaintiff seeks to nullify the rule that, in the absence of fraud or mutual mistake, parol evidence is not admissible to contradict a written contract, by claiming that the provision in said policy, making the policy effective on the 8th day of January, 1917, was waived by the defendant. For proof of waiver, plaintiff says that defendant's solicitor told plaintiff, contemporaneously with the taking of his application for the policy in question, that the policy would take effect 24 hours after his application was made. The intention of the parties was reduced to writing, and is expressed in the written application signed by the plaintiff. Said application does not contain any such provision as is claimed, but, on the contrary, it provides that the insurance therein applied for was to be in force at a date subsequent to the date of the application. Plaintiff is bound by his statements contained in said application; there being no evidence introduced showing that the application was procured by fraud. * * *"
In the evidence we have set out the actual authority given by the company under written contract to the agents involved herein. It is fortunate that we have the authority vested in these agents, acting in behalf of defendant-company, in writing, and we find from the evidence that neither the soliciting agent Rushing, who took the application for insurance from the deceased Halbrook, nor the district agent, George R. Dickens nor the general agent, George A. Krause, were given authority to make oral contracts in behalf of the company or to waive any of the conditions of the policies of accident insurance issued by said company.
Rushing's authority was expressly limited in his sub-contract of employment from Krause. He was authorized only to solicit applications for insurance, to collect premiums thereon and turn them over to the general agent on the day he collected the same and to deliver the policies when received back from the company. His authority was expressly limited in the application for insurance signed by the deceased Halbrook. The application contained the agreement that the company is not bound by any statement made by or to any agent unless written therein and that the effective date of the policy to be issued would be the date of issuance thereon.
Plaintiff, in her petition, relies upon the actual or apparent authority of agent Rushing to make the oral contract relied on but her evidence wholly fails to show either actual or apparent authority upon which the deceased Halbrook relied.
The evidence clearly shows that the district agent Dickens and the general agent Krause were working under written authority from the company, which written authority limited their powers and that said agents did not have authority to make oral contracts in taking applications for insurance; neither were they vested with power to modify or change the written policies. Therefore, their representations to agent Rushing, that the insurance would become effective upon the signing of the application and the paying of the first premium, would not be notice to the company so as to bind it. The only semblance of evidence in the case that might bind the company are the statements of C. Fred Freel, who held the title of general superintendent of agencies, that these policies would become effective as of the date of the signing of the application and the payment of the first premium. The testimony is not clear whether or not these statements were made prior to the signing of this application and the witness Dickens specifically testified that they were made afterwards. The evidence does not show what authority C. Fred Freel possessed and, in the face of the fact that the written instructions for the agents and the written application required by the company, to be signed by an applicant before a policy could be issued, and the fact that deceased Halbrook signed the written application which specifically limited the authority of the agent and was bound by his knowledge of such limitations, we hold that the evidence does not show either actual or apparent authority.
We believe the evidence in this case shows that the only form of contract of insurance contemplated by the parties was by written policy to be issued by the defendant upon the written application of the plaintiff and the evidence does not show any intention or understanding by the deceased Halbrook that the contract was to be made in any other form. The agent's authority was limited, and the plaintiff knew of the limitation. Under such circumstances, even if the agent were clothed with apparent authority to make contracts of insurance, it could not affect the situation, as plaintiff was apprised of the limited authority, and consequently, plaintiff cannot rely upon any alleged oral contract of insurance made by agent. Salisbury v. Indiana Ohio Live Stock Ins. Co., Mo.App., 202 S.W. 412; State ex rel. Prudential Ins. Co. v. Shain, 344 Mo. 623, 127 S.W.2d 675; Gibson v. Metropolitan Life Ins. Co., Mo.App., 204 S.W.2d 439.
The court stated in Quirk v. Columbian Nat. Life Ins. Co., Mo.App., 207 S.W.2d 551, 555: "It is well settled that where parties agree in the application that the insurance contract shall not take effect until the payment of the first premium and the delivery of the policy during the lifetime and sound health of the insured, such agreement will be enforced since it is one the parties have the undoubted right to make."
Plaintiff cites Muth v. St. Louis Trust Company, 94 Mo.App. 94, 67 S.W. 978, 980. The question presented in this case was whether or not a teller of the bank had authority to certify a check drawn on the bank, either actual or apparent. The court made the following statement as to the law: "And the court further instructs you that whenever a person has held out another as his agent authorized to act for him in a given capacity, or has knowingly and without dissent permitted such other to act as his agent in such capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent authorized to act in that capacity, whether it be in a single transaction or in a series of transactions, his authority to such other to act for him in that capacity will be conclusively presumed * * *."
There is no doubt that this is the law but the plaintiff in this case has wholly failed to show facts to bring her case within the law as so declared. Each case must be decided upon the facts in the particular case.
Plaintiff's petition pleads estoppel in that the deceased Halbrook was induced because of the representations made by agent Rushing to refrain from securing other insurance and from his renewing or reinstating a policy of insurance he had permitted to lapse. Plaintiff never offered any evidence to support these allegations.
Plaintiff cites Fitzgerald v. Colorado Life Co., 233 Mo.App. 235, 116 S.W.2d 242, 251. The question involved was whether or not there were sufficient facts disclosed in the record, which, if found by the jury would give rise to estoppel on the part of the defendant to say that it did not approve or accept the application for insurance. The opinion states, 116 S.W.2d on page 248: "Of course, where the contract provides that the insurance shall be in force upon the approval of the application, there is a completed contract upon such approval without the issuance of a policy."
The written application in the case at bar, question 17 is as follows: "Do you understand and agree that no insurance will be effected until the policy is issued?" The answer by the insured is "Yes."
The court stated the law relative to estoppel, 116 S.W.2d on page 249 of its opinion, as follows: "We conclude that a jury in the determination of the question of estoppel, as above referred to, is entitled to take into consideration that defendant is charged was knowledge of the authorized acts of its agents from time said acts are performed, and is entitled to consider lapse of time and the fact that Mr. Enyart had duly made application and paid premiums in advance. Further, we conclude that the jury is entitled to take into consideration in this connection the fact that the examining doctor testified that the applicant by his examination was shown to be a standard risk and also such testimony as bears upon the question of refraining from securing other insurance. We conclude that there is substantial evidence of the aforesaid facts to present an issue of fact to the jury on the issue of estoppel of defendant to deny that it did not approve or accept the application as made. So holding, we are bound by the verdict of the jury. * * *"
Plaintiff contends that defendant-company is estopped to deny that a parol contract was completed between it and the deceased Halbrook effected as of the date of the signing of the application for insurance and the payment of the first premium and that the defendant was obligated to evidence such contract in its written application and the approval thereof and by the issuance of its policy in accordance with the terms of the contract.
There are absolutely no facts in this case, shown in evidence, to justify the submitting of that issue to the jury.
It is the law that the defendant is charged with the knowledge of the authorized acts of its agent from the time said acts were performed but in the case at bar, there is no evidence to show the authority of the agents to make an oral contract.
"However, there is no question but that under some circumstances an insurance company may be estopped from asserting that it did not approve or accept an application for insurance. * * *
"The question to be decided is whether there are sufficient facts disclosed in the record, which, if found by the jury, would give rise to estoppel on the part of defendant to say that it did not approve or accept the application. * * * It is true, as claimed by defendant, that the general rule is that mere delay in passing upon an application for insurance is not sufficient, within itself, upon which to base estoppel, even though the premium is retained. * * *
"`Silence operates as an assent, and creates an estoppel, only when it has the effect to mislead. There must be such conduct on the part of the insurer as would, if it were not estopped, operate as a fraud on the party who has taken, or neglected to take, some action to his own prejudice in reliance upon it.' * * *"
We find this to be the law but not applicable under the evidence in the case at bar.
As we have stated there is no substantial evidence in the case at bar to sustain plaintiff's contention that the defendant is estopped in this action.
We think our discussions of the question involved as to the sufficiency of the evidence fully answers all questions raised by the defendant in this case.
It is the order of this court that the judgment of the trial court be affirmed and that judgment be entered for the defendant.
VANDEVENTER, P. J., and BLAIR, J., concur.