
    CITIZENS’ INS. CO. v. ADAMS et al.
    No. 8275
    Opinion Filed May 21, 1918.
    Rehearing Denied Jan. 21, 1919.
    (177 Pac. 364.)
    1, Insurance — Action on Premium Agreement — Evidence-Execution of Contract.
    In an action to recover premiums on an open policy .of cotton insurance, which contains tbe proviso. "In consideration of the stipulations herein contained and the premium to be paid.” the policy may be properly admitted in evidence in proof of the execu-tion of the contract of insurance on the part of the insurer.
    2. Same — Premium Agreement — Authority of Agent — Ratification — Question for Jury.
    Where the execution of a premium agreement in connection -with an insurance policy, showm on its face to have been executed on the part of the insured by an agent, is questioned, and there is evidence from which an inference may be draw'll that the agent executing said instrument had authority so to do, and also evidence from w'hich an inference may be drawn that, if the agent did not have such authority, the insured subsequently ratified the unauthorized act of the agent, raises questions of fact to be passed upon by the jury, and such instrument should be submitted to the jury under proper instructions.
    (Syllabus liy Collier. C.)
    Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.
    Action by the Citizens’ Insurance Company against P. II. Adams and another. Demurrer to plaintiff’s evidence sustained, and judgment rendered for defendants, and plaintiff brings error.
    Reversed and remanded.
    W. P. Langston and W. L. Chapman, for idaintiff in error.
    E. C. Stanard, J. II. Wahl, and C. II. Ennis, for defendants in error.
   Opinion by

COLLIER, C.

This was an action brought by the plaintiff in error against the defendants in error to recover premiums in the sum of $474.68. on an open policy of cotton insurance. Hereinafter the parties will be designated as they were in tbe trial court.

Upon conclusion of tbe evidence, tbe court sustained a demurrer thereto, and rendered judgment -for tbe, defendant, to wbicb tbe plaintiff duly excepted. Timely motion was made by tbe plaintiff for a new trial, wbicb was overruled, excepted to, and error' brought to tbis court.

There was evidence on the part of the plaintiff that tbe insurance was written at tbe reguest of one P. H. Adams and said policy delivered at tbe office of tbe defendants by giving tbe same to tbe bookkeeper of tbe defendants; that prior to the delivery of said policy tbe defendants were insured by the plaintiffs under a special verbal agreement, wbicb was temporary, and to be good until the receipt of tbe policy sought by tbe defendants.

Tbe plaintiff offered in evidence tbe said policy, and tbe schedule of rates for the payment of premiums thereon. Tbe said schedule of rates was signed by tbe defendants, by J. S. "White, who testified that he was tbe bookkeeper of tbe defendants; that be kept all of the books of tbe defendant and issued all' of the reports and sent" out. all of the vouchers; that be received the policy ’ in question, and that' it was brought to tbe office and put on tbe desk where thé witness was, and tbe. witness was informed that it was tbe policy or agreement, or something, and when.tbe other parties came in to show it to them; that be did, not remember whether or not be showed tbe policy to "them; that be did not think be did; that be signed tbe name of Adams & Melson to the premium agreement attached to tbe policy; that' he did not remember whether or not he showed tbe premium agreement to Adams .& Melson; that he did not believe be did; that be did not know what be did with it after he signed it; that he did not remember anything about tbe policy, except that be signed something there, and thought it was a receipt; that he did not. sign all of the agreements for Adams & Melson; that be did "not sign anything except checks, and bills of lading with checks attached to them; that Adams & Melson. were away from the office a good deal of the time, but that he did not know as they gave him authority to sign anything to bind them in any manner ; that after the premium agreement was signed he took it to the bank, and placed it in the bank for safekeeping; that he did not remember when he received the policy; that he probably received it the same day: that at the time he was the only, bookkeeper and the only clerk of Adams & .Melson, and took care of the business and all of the books in the office; that the only authority he had in the office was to sign bills of exchange, checks with bills of lading attached, to he paid.by the bank, and if it was not attached to the ticket checks were not to be paid by the bank.

Adams testified that' he and Melson were engaged in the cotton business; that Mr. 'White was employed by the firm of Adams & Melson at that time; that Mr. White kept the books, and made up invoices, and sent out and received bills of exchange when they came there to the bank to be paid off; that White was authorized to sign nothing but bills and checks with documents attached .to them received by the bank; that he did not see the premium agreement attached to the policy; that he did not have any conversation with ’ the insurance agent about tie premium agreement;' that Mr. White did not submit to him -the -premium agreement fqr-his examination before it was signed by Mm and returned ; that he did- not know whether- White took the matter up with Melson or not; that Mr. White.did not have full'authority - to sign anything that was necessary for 'him to sign'during his absence ; that he- had - authority to ..make up .invoices to other -firms' that they were shipping to, and sign their names to the invoices, that he had the right to O. K. a draft with bill of -lading attached to it, or write out a cheek and attach a cotton ticket to it; that he had-authority to make reports of cotton under the provisions of the policy, as he understood it, and-he thought he-did make such reports; that he made such reports under the direction of himself and Mr. Melson; that the premium agreement was not signed in his presence; that he did not know the policy was there until the auditor of the insurance company came; that he knew they were making reports on certain amount of cotton; that he did not know whether he saw the policy or not; that the first time lie saw it was when he went to 'the bank to get it. to' give it to the auditor, when he demanded that it be canceled; that he' knew they- had' the policy, because Mr. White told him, several days. after he put it in the safety deposit box,'and 'when' the auditor came he went to the safety deposit box and got it, and delivered it to him; that he did npt know how long the policy had been there before the auditor came; that he thinks he talked with the insurance agent about this policy after it was issued; and that the only disagreement had between the agent, the auditor, and himself was the amount of cotton to be reported under the policy.

Thereupon the defendant offered !in evidence the policy of insurance, to which was attached the premium agreement, which was signed' by “Adams & Melson, Assured, by J. S. White.” The court sustained an objection to the 'introduction of said policy, to which the plaintiff duly excepted. The plaintiff then-announced its desire to stand on its offer- of evidence. Thereupon the defendant demurred to the evidence, which was sustained-, to which action of the court the plaintiff duly excepted, and judgment was rendered for the defendant.

It i's' contended by the plaintiff that the court committed error in refusing to admit in evidence the policy of" insurance, and with this contention we agree. The liolicy in this case provides:

“In consideration of the stipulation herein named, and the premiums to be paid,” etc.

And it in no way refers in the body of the policy to the written agreement, or to the payment of the premium which is attached to said iiolicy. We therefore think that, independent of the premium agreement which was attached to said policy, said policy itself was admissible in evidence, leaving the burden upon the plaintiff to prove what the premiums agreed to be paid were. If the agreement as to the payment of premiums was in writing, then it would be incumbent upon the plaintiff to have proven the execution of said premium agreement by the defendants or their duly authorized agent, or that'; after the execution of said premium agreement by one unauthorized to execute the same, the said agreement was ratified by them in order to make said agreement as to premiums admissible in evidence.

Whether or not the premium agreement was admissible in evidence depends upon whether or not the defendants by their duly authorized agent executed the same, and whether or not, if the said premium agreement was executed by White without authority, that defendants afterwards ratified the action of White. The question of the authority of white to execute, in the name of the defendants, the premium agreement, and as to whether or not. after the execution of the same by White, the defendants ratified the. action of White, were questions of fact, which should have been submitted to the jury. The court committed reversible error in excluding as evidence the said policy of insurance.

The policy of insurance should have been admitted in evidence, and, had it been admitted, the inferences and conclusions that might have been drawn from the evidence raised a question of fact as to the execution of said agreement for the payment of premiums upon said policy, and also whether or not, if the said premium agreement was executed in the name of the plaintiff by an unauthorized agent, they subsequent to the execution thereof ratified said execution.. The court, with the policy in evidence, would have committed reversible error in sustaining the demurrer to the evidence.

This cause is reversed and remanded.

By the Court: It is so ordered.  