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tive from noon of the twentieth day of May, 1904. The defendant sought to escape liability on account of a policy of insurance issued on the same property by the Connecticut Fire Insurance Company, which policy it claimed was in force at the time of the fire. This policy had been procured for the plaintiff shortly before the fire by V. J. Lamb, whom the plaintiff then believed to be the agent of the Connecticut Fire Insurance Company. Lamb was in fact an agent of the defendant, and as such he issued and delivered to the plaintiff the policy in suit, in the belief, both by him and the plaintiff, that the policy so surrendered had been canceled. Lamb, in what he did, did not act, and was not authorized to act, for the Connecticut Fire Insurance Company, but the plaintiff had no notice that Lamb's authority as agent of such company had terminated.
The case was tried before the court without a jury, which rendered judgment in favor of the plaintiff. An appeal was taken to the circuit court resulting in a judgment of affirmance by it.
J. W. Mooney, for the plaintiff in error.
Moore & Craver and W. C. Guenther, for the defendant in error.
151 PRICE, J. The material facts of this case are not seriously in dispute. The first paragraph of the answer makes denial of some of the averments of the petition, but the balance of the answer gives an affirmative statement of what the defendant, the Aetna Insurance Company, claims the real transactions between it, the Stambaugh-Thompson Company and the Connecticut Fire Insurance Company were, preceding the fire.
One V. J. Lamb, on the first day of April, 1904, and for some time prior thereto, had been a local agent for the Connecticut Fire Insurance Company, and was located in the city of Youngstown, Ohio, in which was the store and place of business of the Stambaugh-Thompson Company. Through his agency, said insurance company, on the first day of April, 1904, issued and delivered to the Stambaugh-Thompson Company a policy of insurance in the sum of three thousand five hundred dollars, covering the stock of goods and other merchandise described in the petition. There was other concurrent insurance at 152 that time of over seventy-five thou
sand dollars. The premium was thirty dollars and fifteen cents, but was not paid until after the fire. On or about the twenty-ninth day of April, 1904, the authority of Lamb to represent in any respect said insurance company was revoked, and at the time of the fire on the twenty-first day of May, 1904, said Lamb was not the agent of said company, but the Stambaugh-Thompson Company believed that he was, and had no notice or knowledge then of the fact that his agency had been revoked. Prior to the fire, and on that day, said Lamb was the agent in said city of the Aetna Insurance Company, and had authority to fill up blank insurance policies issued by that company, which had been signed by its proper officers and delivered to him, so that the said agent, when he desired, could fill said blanks, and when so filled and the policy countersigned by him, the same would become effective on delivery to the insured without further action on the part of the company. There is no dispute in this court, and there was not much in the trial court, about the following prominent facts: In the forenoon of the twenty-first day of May, 1904, and some time preceding the fire, Lamb met Mr. Vallance, of the Stambaugh-Thompson Company, on the street in Youngstown, not far from the store, and informed Vallance that the Connecticut Fire Insurance Company had communicated to him, Lamb, that it had more insurance in that block than it cared to carry, and that he had transferred it into another company. When asked by Vallance what company he referred to, Lamb replied, the Aetna. Vallance, who was in charge of the insurance affairs of StambaughThompson Company, expressed his satisfaction with the Aetna, and directed 153 Lamb to go to the office in the store and tell Mr. Freed, a bookkeeper there, of the arrangement, and that he should hand over to Lamb the policy issued by the Connecticut Fire Insurance Company and take in its place the policy of the Aetna company, all of which was done. The Aetna policy was delivered and the Connecticut policy surrendered to Mr. Lamb. These policies were for the same amount and on same conditions. After Lamb had taken possession of the Connecticut policy he left the building and when on the street, a very few minutes after leaving the store, he heard the fire-alarm and soon ascertained that a fire had started in the store of the Stambaugh-Thompson Company, which he had so recently left. The fire was in the rear and upper part of the building. During the progress of the con
flagration Lamb, uncertain as to what course he should pursue, handed the Connecticut policy to Mr. Stambaugh, president of the Stambaugh-Thompson Company, and he retained it, as well as the policy issued by the Aetna company. The insured company, two or three days after the fire, paid the premium on the Connecticut policy for the entire term for which it was issued, and at the same time paid the premium for the Aetna policy. The latter company returned the premium to the insured, but it was again sent to the office of Mr. Lamb, its agent. Proper proofs of loss were made to both companies, and there is no dispute concerning them, or the amount of the loss, but each company declined to pay it, and hence the suit under review.
It is not claimed that the fire had started at the time the policies were exchanged, nor is there any evidence to support such claim if it were made. 154 Therefore the liability of the insurance company must be determined from its status at that important crisis. It was not intended or understood that both policies should be binding, but that the Aetna should be a substitute for the other policy. Therefore, on the facts narrated, is the Aetna company liable? The answer to this question is to a large extent dependable upon the right of the insured to regard and deal with Lamb as the representative of the Connecticut company. If the revocation of his agency in April preceding the fire was effective as to third persons who were not apprised of such revocation, then the transactions between Lamb and the insured prior to the fire were void, and there was no valid cancellation of the policy issued by that company. The lifting or taking up of such policy on one side and its surrender to him by the insured was of no avail. But the general rule of revocation of agency does not prevail on the facts of this case, because it is undisputed that the Stambaugh-Thompson Company had no notice or knowledge that the agency had been revoked, and having dealt with Lamb in the placing of the Connecticut company policy, on the 1st of April just preceding, it believed he was still its agent at the time the exchange of policies was made. Under such circumstances, and for the purposes of the exchange, the law regarded Lamb as still the representative of that company. This proposition of the law of agency is not contested, but is agreed upon as the rule that should govern this case. It is the rule recognized in Ish v. Crane, 8 Ohio St. 520, 13 Ohio St. 574. See,
also, Springfield F. & M. Ins. Co. v. Davis, 18 Ky. Law Rep. 654, 37 S. W. 582; Burlington Ins. Co. v. Threlkeld, 155 60 Ark. 539, 31 S. W. 265; Southern Life Ins. Co. v. McCain, 96 U. S. 84, 24 L. ed. 653. There are many other supporting authorities, but as the rule is conceded, we need not cite them.
We are now brought to the question, Was the Connecticut policy canceled prior to the fire? As we have already said, it is agreed upon all hands that both policies were not to be in force, for that would have created additional insurance when such was not the purpose of the parties. It is earnestly urged for plaintiff in error that there was no valid cancellation effected; that at the most, there was but a conditional cancellation, and that statement implies that something had to be done or said by the Connecticut company, after the Stambaugh-Thompson Company surrendered the policy to Lamb, and that as nothing was said or done by the company toward the completion of a cancellation, then in fact and law none was made.
The policy contains the following provision: "This policy shall be canceled at any time at the request of the insured; or by the company by giving five days' notice of such cancellation. If this policy shall be canceled as herein before provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that if this policy is canceled by this company giving notice, it shall retain only the pro rata premium.'
If the company exercises the right of cancellation, it must give five days' notice thereof, so that the insured may procure other insurance, and until the expiration of the five days the policy is in full 156 force. On the other hand, it is sufficient if the insured request its cancellation of the company or its agent for that purpose, and with such request delivers the policy to the company or such agent. No agreement for cancellation is necessary. If the company desires to cancel and gives the five days' notice, it can cancel despite the protest of the insured, for his consent is not essential. No meeting of the minds is necessary, and no act on his part is necessary. And if the insured desires a cancellation, he may request it and surrender the policy to the proper party for that purpose:
Train v. Holland Purchase Ins. Co., 62 N. Y. 598, 68 N. Y. 208.
As said by the court of appeals in Crown Point Iron Co. v. Aetna Ins. Co., 127 N. Y. 608, 28 N. E. 653, 14 L. R. A. 147: "While a method of terminating the insurance upon the motion of the insured is not specified, except that the insured party is to request it, the language of the contract indicates that the subject is within his control and that the terminating act is to be done by him alone, without any concurrent or supplemental act on the part of the company. . . . . While it takes two to make a contract, one may end it, if the contract itself so provides."
And again, on page 615, the same court says: "Although the language of the parties is at the 'request' of the insured in one instance, and on 'notice' to the insured in the other, we think that in both it is within the power of the party desiring to end the contract to do so without either consent or action on the part of the other. When the insured surrenders the policy and requests that it be canceled, he can do no more. Unless that ends the contract he is powerless to end it, and the company 157 while able itself to hang on or let go as it wishes, can hold him against his will."
We have seen in the statement of facts in the case before us, that the surrender of the Connecticut policy and the substitution of the Aetna policy was had in pursuance of an agreement between the insured and Lamb, who, as the insured believed, still represented the Connecticut company. The very act of surrendering one policy and accepting the other in its stead implies both request and direction that the first be canceled. The insured could go no further or do more. What marks may be put on the policy or entries made on the books of the company is a matter of its own. Regarding Lamb as the agent of the Connecticut company, as we must do, because Stambaugh-Thompson Company believed him still to be such agent, where is there any conditional cancellation in this case? True, after the fire or near the end of its work, Lamb handed back the Connecticut policy, but that was useless, for, as already stated, the status of the insurance companies, for weal or woe, became unalterably fixed by the starting of the fire, and neither the return of that policy nor the subsequent payment of its premium by the insured changed the relations of the parties.