HOUSE
v.
BILLMAN.
Docket No. 73, Calendar No. 46,060.
Supreme Court of Michigan.
Decided October 4, 1954.Harry T. Running, for plaintiffs.
Murchie, Calcutt & Griffin, for defendant.
BOYLES, J.
Plaintiffs sued the defendant insurance company and one Billman, its local agent, to *623 recover for loss, under a fire insurance policy. On trial by jury plaintiffs had verdict against the insurance company and judgment was entered accordingly for the full amount of their claim. No judgment was entered against Billman and he is not a party on this appeal.
Plaintiffs lived in a cottage they owned at Glen Lake, in Leelanau county. The policy in question covered their household goods and personal property in their home. During the life of the policy they moved part of their household goods into another cottage a short distance from their own, owned by the father of plaintiff Aileen House, and lived there during the summer. While there, a fire occurred resulting in loss of household goods. The instant suit is to recover for that loss.
Pertinent to the instant case, the policy stated:
"This policy covers the following described household and personal property contained in the composition roof frame building occupied for dwelling purposes, situated E/S Glen Lake, next South West of Forest Downs Plat. in Section 1, Twp., 28 North, Range 14 W.
City | > of Cedar, State of Michigan Town |"NOTE For information only. The above described building is occupied, or to be occupied, by one families.
"1 $4,000. ON household and personal property usual or incidental to the occupancy of the premises as a dwelling * * * (unimportant exceptions) while contained in the above described dwelling or appurtenant private structures or while on the above described premises.
"The insured may apply up to 10% of the amount specified for item 1 to cover property described therein and insured thereby * * * belonging to the insured or any member of the family of, and *624 residing with the insured, while elsewhere than on the described premises. * * *
"Waiver No permission affecting this insurance provisions shall exist, or waiver of any provision be valid, unless granted herein or expressed in writing added hereto.The plaintiffs claim that the insurance company's agent, Billman, waived the provisions of the policy limiting coverage to their home cottage designated in the policy, except to the extent of $400, and that Billman had the authority to do so. The insurer denies that Billman had such authority, and admits liability for $400 and no more.
For the purpose of decision here it may be considered that Billman was the authorized agent of the insurer, at Cedar, Michigan. The insurer provided him with standard form policies, which he was authorized to countersign, whereupon the policies, when so countersigned, became valid. It may also be considered here that Billman told the plaintiffs that the property which they were moving to another location would be covered by their policy. However, there was no written waiver or consent, or change in the policy by indorsement or otherwise, and the insurer was not notified. The precise question here is not whether Billman had authority to countersign and issue policies, but did he have authority to change the provision in the policy limiting coverage to the designated place of residence of the plaintiffs with the exception of $400 if loss occurred in some other place.
Plaintiffs rely on Cappaert v. Emmco Insurance Co., Inc., 304 Mich. 130, in which case, after some dicta, it was finally held that after the insurer company had been notified of the change and had made *625 an indorsement on the policy to that effect, the statement of the general agent of the company that the coverage in the policy was or would be extended had estopped the insurer from denying liability. While the indorsement was belated, the Court said (p 135):
"Defendant claims that since the indorsement is dated after the fire and could not be retroactive, the writing itself does not cover the loss; that, therefore, no case on the policy has been maintained. The declaration and plaintiff's reply and defendant's answer do show, however, that defendant's agent prior to the fire advised plaintiff that he was covered for the increased radius of usage. The limitation of use indorsement was thus extended, or at least the previous limitation thus was waived."
In the instant case, the plaintiffs failed to offer any testimony as to the actual authority of Billman to bind the insurer. The defendant introduced testimony by Billman. It established that Billman had no authority to change a policy, that it was done by indorsement, which was not done here. Billman testified:
"Q. You have authority from the company to issue a policy, have you not?
"A. Definitely.
"Q. That is, you countersign the policy?
"A. That is right.
"Q. The company writes the policy first?
"A. They do in my case.
"Q. Does the company ever authorize you to waive any written provisions in a policy?
"A. What do you mean?
"Q. Does your authority extend to changing the terms of the policy?
"A. Oh, no. Usually that is by indorsement.
"Q. But the company issues that indorsement, does it not?
"A. That is right."
*626 The only other evidence bearing on Billman's authority to change the policy is the policy itself, which expressly requires that any change or waiver must be in writing.
In Henne v. Glens Falls Insurance Co., 245 Mich. 378, the plaintiff-insured called the office of the agent, some time after a policy had been issued, and requested that the coverage be transferred to a certain Union truck, instead of the G.M.C. truck mentioned in the policy. Later, the agent informed the plaintiff-insured that the transfer had been effected, although in fact no indorsement was obtained from the company. The policy provided that no assignment or transfer could be made without the written consent of the company. As in the instant case, the only evidence as to the agent's authority was his own testimony. Billman's testimony as to his authority has been heretofore quoted. The Court held (syllabi):
"A local agent who is authorized to solicit insurance, sign and issue policies, collect and receipt for premiums, has no authority under the settled law of this State and section 1, chap 3, pt 2, PA 1917, No 256,[*] to waive the express provisions of the policy.
"Where there is nothing in the record to show that an insurance company in any way held out the local agency as possessing authority to change or modify its policies or to waive any of their provisions, it is not estopped from asserting that its policy issued on a certain motor truck did not insure another truck to which the insurance had not been transferred under the terms of the policy, although insured testified that he notified the agency to transfer it and was later informed that the transfer had been made."
"An insurance policy when issued and delivered becomes the contract between the parties.
*627 "In the absence of fraud, insured is held to a knowledge of the conditions of his policy, even though he may not have read it.
"An insurance solicitor, to whom an oral request was made to transfer a collision insurance policy on a motor truck, has no authority to waive the conditions of the policy in regard to transfer, and where no notice thereof was given the insurer, the solicitor's promise that the transfer would be made was not binding on it." Serbinoff v. Wolverine Mutual Motor Insurance Co. (syllabi), 242 Mich. 394.
See, also, Barry & Finan Lumber Co. v. Citizens' Insurance Co., 136 Mich. 42.
At the trial, and again here, the amount of loss was stipulated, and the insurer has admitted liability to the extent of $400. However, the record here fails to show any tender by the insurer.
The judgment is set aside and the case remanded for entry of judgment for $400 for the plaintiffs, with costs of the trial court. Appellant will have costs of this Court on appeal.
BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, REID, DETHMERS, and KELLY, JJ., concurred.
NOTES
[*] CL 1948, § 513.1. REPORTER.