I concur in the result reached by the majority opinion but do not think Code section 8770 applies. Appellant wrote into the application a warranty that the insurance was only to go into effect upon delivery of the policy and payment of first premium"and then only if the applicant has not consulted or been treatedby any physician or practitioner since his medical examination." (Italics supplied.)
We have held that in absence of interdiction of statute an insurance company may exact warranties of fact thought *Page 421 material. Graf v. Employers' Liability Assur. Corp., 190 Iowa 445,448, 180 N.W. 297, and cases there cited.
The warranty here is not as to the condition of health of the applicant at the time of delivery of the policy. Appellant does not base its defense on the ground of applicant's condition of health at that time. We need not speculate as to the purpose or reasonableness of this particular warranty since its legality seems to have been upheld in many cases. See cases cited in Division II of the majority opinion. Appellant had an undoubted right to exact it and we must assume the applicant knew and understood the terms upon which he would become insured.
Code section 8770 by its very terms only estops the insurance company from setting up a defense based on applicant's conditionof health at the time the policy is delivered. That is not appellant's defense here. Were this the whole record I would favor reversal.
However, appellee pleaded waiver by reason of the delivery of the policy and collection of the premium. Appellant contends, "The real issue is as to the agent's authority to waive the conditions of the contract."
The application provided that only certain officers of the appellant had authority to waive any of its rights and that "notice to or knowledge of the soliciting agent * * * is not notice to or knowledge of the Company."
The undisputed record here is that the policy was sent to one Carl W. Johnson for delivery and collection of premium; that accompanying it was a letter of instruction stating that "A policy must not be delivered (a) If any change whatever has occurred in the health or occupation of the applicant, or if he has consulted or been treated by a Physician since the date of his medical examination. In such case the agent must at once return the policy to his Branch Office with full particulars and await further instructions."
Mr. Johnson was the soliciting agent who had solicited the application. By direction of the applicant he delivered the policy to applicant's brother and collected from the brother the balance due on the premium. The brother informed Johnson at the time of delivery that applicant was sick, in a hospital, and had been operated on for appendicitis. Neither the applicant *Page 422 nor his brother had any knowledge of the contents of the letter of instruction to Johnson.
There is no doubt that a company may by its conduct waive or estop itself from claiming the benefit of breaches of warranties and conditions in respect to prior consultations with or treatment by physicians. 37 C.J. 526, 527, section 260, note 31; Couch on Insurance, section 130b. May it not also waive provisions which are designed to limit to certain designated representatives the authority to waive grounds of avoidance of liability?
It may be admitted that courts are not in agreement on this last proposition. See 32 C.J. 1318 et seq., section 570; 29 Am.Jur. 620, section 816; Couch on Insurance, section 522 et seq. But from a comparatively early day this court has been committed to the doctrine that such restrictions may themselves be waived. Viele v. Germania Ins. Co., 26 Iowa 9, 54, 96 Am. Dec. 83; Young v. Hartford Fire Ins. Co., 45 Iowa 377, 380, 381, 24 Am. Rep. 784; Ruthven Bros. v. American Ins. Co., 102 Iowa 550, 558 et seq., 71 N.W. 574; Lutz v. Anchor Fire Ins. Co., 120 Iowa 136,138, 94 N.W. 274, 98 Am. St. Rep. 349; Black v. Grain Shippers Mut. F. Ins. Co., 171 Iowa 309, 314, 152 N.W. 7.
When this policy was sent to Johnson for delivery and collection of premium he became more than a mere soliciting agent. He was designated to complete the transaction with the applicant. He was clothed with the responsibility of ascertaining whether certain facts existed that might hinder or prevent putting the contract into effect.
He was frankly told the facts. There was no concealment, no bad faith. The premium was paid to and the policy delivered by him as the only representative of appellant available to the applicant. The applicant had no knowledge of any secret instructions limiting Johnson's authority in the transaction.
In creating this situation appellant, I think, must be held to have waived the conditions written into the application. In Lutz v. Anchor Fire Ins. Co., supra, we said at page 138 of120 Iowa, page 275 of 94 N.W.: "* * * it was not within the realm of legal possibilities that it [the company] should divest itself of all capacity to waive any contract right it possessed, *Page 423 or should so limit the manner and form in which a waiver may beexpressed that such limitation itself might not be waived." (Italics supplied.)
We have said: "* * * a nonwaiver clause is no more sacred than any other condition and may be waived by the company." Henderson v. Standard Fire Ins. Co., 143 Iowa 572, 576, 121 N.W. 714, 715.
Acting for the appellant within the scope of his apparent authority, with full knowledge of the facts, the agent, by accepting the premium and delivering the policy, waived the condition upon which the defense here is based and estopped appellant from asserting it. Upon this consideration I think the decision of the trial court should be affirmed.
MANTZ, J., joins in this special concurrence.