
    Atkinson v. The Hawkeye Ins. Co.
    1. Fire Insurance: contract of insurance: facts not constituting. Plaintiff executed an application to the defendant company for insurance, and delivered it, with the premium and policy fee, to one who was only a soliciting agent of defendant, with the understanding that it should be sent to the defendantfor acceptance, and that, if not accepted, the money should be returned. The application and premium were sent by the agent, but were never received by the company, and no policy was issued, and nothing further done. More than two years afterwards the property was-burned. Held that the facts did not create a contract of'insurance, and that defendant was not liable for the loss. (Compare Walker v. Farmers' Ins Co., 61 Iowa, 679, and Armstrong v. State Ins. Co., 61 Id., 212.)
    
      Appeal from Fremont District Court.
    
    Saturday, March 12.
    This is an action upon an alleged contract for the insurance of a dwelling-house against loss or damage by fire. The cause was submitted to the court below upon the pleadings and an agreed statement of facts. The court determined that the defendant was not liable for the loss, and the plaintiff appeals,
    
      W. JI, Wilson and W. P. Ferguson, for appellant.
    
      Draper & Thomell, for appellee.
   Rothrock, J.

-The facts essential to a proper determination of the case are as follows; One Baylor was a soliciting agent of the defendant at Tabor, in this state. - The plaintiff made a written application to him for insurance upon his dwelling-house by the defendant company. This application was made upon one of the printed forms in use by the company. This printed blank form was as follows:

“Application is made by--, of-, county-, state of Iowa, for insurance against loss or damage by fire -, to the Hawkeye Insurance Company, in the sum of -dollars, for the term of-years from the-day of --, 188 — , by a policy with the usual conditions of the company, on the property hereinafter mentioned, viz: [Here follows a description of the property on which insurance is sought.] The applicant agrees that each of the foregoing answers, statements and valuations are true, and a warranty on his part, and that the accepting of this risk, and the issuing of a policy of insurance thereon by the company, is to be based solely upon this application; * * * that no liability of the company shall attach until this application has been actually approved by the home office.”

Upon making the application, the plaintiff paid to Baylor the sum of $10.80, premium and policy fee, and Baylor delivered to the plaintiff a receipt in these words:

“Received of J. H. Atkinson an application for insurance, by'the Hawkeye Insurance Company, of Des Moines, Iowa, on property to the amount of $500, for the term of five years from date, with $10.80, and an obligation for--due and payable on the ——•— day of-, 188 — , premium and policy fee, subject to the approval of the company. In case the company decline to issue a policy on said application, then the obligation and premium received shall be returned to him by mail or' otherwise.
“D. R. Baylor, Soliciting Agent.”
“Dated August 30, 1882.

Baylor, being a soliciting agent only, immediately upon the receipt by him of the application and premium, deposited them in the post office, properly directed to the home office at Des Moines. They were never received by the defendant, nor any of its' officers. The application and receipt were made and the premium paid upon the thirtieth day of August, 1882. The dwelling-house of plaintiff was destroyed by fire’on the eighth day of January, 1885. No officer nor agent of the defendant, except Baylor, had any knowledge that an application for insurance had been made by plaintiff until after the building was destroyed. There are other facts in the case which, in the view we take of the rights of the parties, are not necessary to be stated.

Counsel for plaintiff contend that, although Baylor 'was unauthorized to execute contracts of insurance, yet that the transaction became a contract as soon as the company could have an opportunity to accept the risk, and failed to do so, or return the premium. If the defendant had received the application and premium, and retained'the same, and remained silent, it may be that it should be held to have approved the application. But this question is not in the case. The company had no knowledge that any application had been made and premium paid, and no contract can therefore be implied from any neglect to issue the policy founded upon the knowledge of the defendant that such an application had been made. The case is very much like Walker v. Farmers' Ins. Co., 51 Iowa, 679, where it was held that the giving of an application for insurance to an agent of the companjr authorized to receive applications only, and the execution of a premium note, do not constitute a contract for insurance. In that case the agent of the defendant neglected to forward the application and premium note, and the company had no knowledge of their existence until after the property was destroyed by fire. In this case the agent was not negligent-We think the case is controlled by that above cited, which was followed and approved in Armstrong v. State Ins. Co., 61 Iowa, 212.

Affirmed.  