678 HOME FIRE INSURANCE CO. V. PARKER. [177 HOME FIRE INSURANCE COMPANY V. PARKER. Opinion delivered June 18, 1928. 1. INSURANCE—CONCURRENT INSURANCE CLAUSE. — A clause keeping a fire policy in force .five days after notice of its cancellation did not invalidate a second policy in another company, taken out within such five-day periodrnotwithstanding the concurrent insurance clause, where the same local agent was representing both companies, sinée, in such Case, the insured waived the 'benefit of the cancellation clause by . acquiescing in the agent's 'issuance of the second policy. 2. INSURANCE—AUTHORITY OF AGENT TO ACT FOR BOTH PARTIES.—An agent authorized to write policies of • insurance, may also act as agent of an assured in keeping his : property covered With insurance and in selecting the companies in wbich the policies are written. Appeal from Phillips Circuit Court ; W. D. Davenport, Judge ; affirmed „ . Wynne & Miller, for aripellant. . ,Moore, Walker & Moore, for appellee. MCHANEY, J. Appellee held a policy of fire insurance in the Home Fire Insurance Company of New York,, ten by Hugh Mixon of Marianna, covering Certain personal property, in the slim of $1,000. This company directed Mr. Mixon to cancel said policy, and on the 8th day of January,. 1927, he canceled the policy, and issued another policy , for appellant •to .appellee, covering the same risk and for the same amount. On said date Mr. Mixon wrote appellee the following letter : "January 8;1927. "Mr. E. L. Parker, "Lexa, Arkansas. "Dear Mr. Parker : This insurance company in which I have your household goods policy is not being written by us any longer. We are today renewing your insurance in another company, and will run one year from date. "Please return the policy you now have and we will give you credit for return premium and apply it on the new policy.
AlcKl] HOMR VIRE INSURANCE CO. v. PARKER. 679 . ,you.decide to move to Marianna, the policy will not. he affected except in a reduction in rate. I have' a house I want you to look at when you arrive here. .."With very best regards; • "Yours very truly, "Hugh Mixon 'Agency. • • "Manager." Appellant's policy, , althoUgh issued on that date, was not countersigned• and deliyered 'to appellee until after the loss-occurred on the 12th day of January; 1927. There is a' •clause ii the policy of the Home Fire Insurance Company of 'New York, as in , all standard fire insurance • policies,. to the effect that policy-remains in force five days after notice of cancellation -is given, and the loss occurred within tbe five-day period. Appellee made proof of loss, •and deliaanded payment of the full athount of his Policy, the , total loss being more than $1,800, which appellantrefuSed to pay and this laWsuit followed, resulting'in a verdict and judgment against appellant for the full amount sued . for, plus 12 per cent. penalty and an attorney'Slee of $150. • .• It is 'firSt inSisted • that the court committed error in•refUSing appellant's reqnest for a peremptory instruction. This' contention is . ba . sed on the ground that the policy of the Horne Fire . •Insurance COm,pany of New. York was still in effect on the date of the fire, by reason of the five-day Oncellation clause heretofore .then-Honed,. and that, under the concurrent insurance clause in its Policy,'same never' became effective and binding on it, hecause- of the prior" insUrance existing iii tbe Home of New York; We.dO -not . agree with counsel in this contention, as the lettet of Mr. Mixon to appellee shows clearly that he had canceled the policy of the HOme Of New York; and, that he• had renewed the risk in appellant company. The five-day:clause referred to does not apply to a situation of this . kind. It is for •the benefit of the policyholder. -While the, company has ,the right to cancel it, itcannot do so until the expiration of five days, without the consent . of the policyholder, which gives him
680 HOME FIRE INSURANCE CO. v. PARKER: [177 this time in which to secure additional insurance. -Being for the benefit of the policyholder, it is a. provision that can be waiVed by him, and was waiYed in this case by the, acquiescence of appellee in the action of Mr. Mixon*, -who stated that he had canceled -the .policy in the Home of New York, and had re-written it in appellant company, to run one year from date, and it makes no difference that the policy was actually countersigned and :delivered after the fire, because the appellee rested under the assurance of Mr. Mixon that his risk was covered.. Mixon was the general agent for !both companies, holding blank. policies, with the• power to execute • and deliver and bind his companies immediately 'on . fire insurance, risks. Mil-waukee Mechanics' Ins. Co. v. Fuquay, 120 Ark. 330, 179 W. 497. • In the case of Phoenix Insurance Co. v. St . ate, 76 Ark. 180,.88 S. W. 917, ' 6 Ann. Cas: 440, this eourt held that .an agent authorized -to write policies of insurance. may also . act as the agent of the property owner, by agree-. ment with the owner to keep his property covered with insurance, and to select the companies in .which the policies shall -be written. We think we may safely assume, in this -case, tbat the agent of appellant had authority-from appellee to keep his property insured. . At least the agent assumed such authority by canceling the policy then-held by appellee and reissuing it in appellant corn-Tway. .It cannot therefore be said that the action of the, agent was without the authority of the assured, nor is there an atterUpted cancellation by substitution of the policy of another. company. There was an actual cancella-. tion and an actual issuance of another policy. Therefore the cases cited.,by appellant. have no application to the -facts in.this case.. . Appellant Also . complains of instruction No. 1 given by the court at appellee's request, as follows :- * "You are instructed that, if you find from the evidence that Hugh Mixon was the Agent of the defendant insurance company, and . that he informed the plaintiff that he had-canceled the policy issued by the Home Fire'
, ARK.] 681 Insurance Company of New York, • and ..had . placed ,a .policy for a like amount , in the Home Insurance Company • of Fordyce, then you are instructed . that the ddendant would be bound by such statement, and you .should.find for the plaintiff.." 'It is said that this instruction is . erroneous, because the agent had no 'such authority, but it will be seen from what we have already said that he did have this authority. And it is further said that it -is in conflict with instruction No. 6, given at appellant's request.. Instruction No. • 6 simply was the converse of No. 1. told the jnyy that, if ..,they found the . policy in the Home Insurance . Cona-pany of New York had not been canceled at the time the fire occurred, the judgment should bc for the defendant. The instructions are not in conflict, , and were correct declarations of law. . . We find no error, and tbe jndgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.