OPINION ON MOTION POE REHEARING.
SMITH, P. J.— It is insisted that while this case is like that of Mensing v. The American Ins. Co., 36 Mo. App. 602, it has been decided contrary to the way that case was decided. Are the two cases alike?
In this case, the plaintiff in her written application for the policy warranted that the building which she sought to have insured was occupied as,a dwelling, and it was upon this warranty the policy issued. The policy provided that if the insured misrepresented in writing any material fact concerning the subject, of the insurance, it would be void. There w;as also a further provision to the effect that this policy is made and accepted subject to the'foregoing stipulations and conditions: “. . . and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of the policy may-be the subject of agreement indorsed hereon or added hereto, and to such provisions and conditions, no officer, agent or representative shall have such power or be deemed or 'held to have waived _such provisions and conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission, affecting the insurance under the policy, exist or be claimed by the insured, unless so written or attached. ’ ’
The policy in the Mensing case provided that the “insurance in this company is confined to farmhouses, *90barns and' outbuildings, private dwellings and private barns in towns . . . and no authority is given to any agent to take any application in any other class of property, and not upon any property exposed within one hundred feet of a store, hotel, public boarding house, mill, manufacturing establishment, or other extra or special hazard.” The application stated the property to be a dwelling house, when it was, in fact, a boarding house with a saloon in the front room. In this case, as has been set out, the property was stated in the application to be a dwelling house, when it was a dwelling, in one room of which was a millinery store, and this fact was known to the agent at the time he wrote the application.
In the Mensing case there was contained in the policy a limitation on the authority of the agent of which the insured had notice that no agent had authority to take any application for insurance on any other class of property than that specified in the limiting clause. The agent of the insurer knew at the time he accepted the application that the property was not a dwelling house but a boarding house and saloon. On this state of facts it was held by us in that case.that the limitation contained in the policy was notice to the’ •insured that the agent had no authority to insure a boarding house and saloon, and that the defendant had the right, as any other principal, to limit the authority of its agents ;*and to allow the plaintiff to recover would be to hold defendant liable for a risk it did not take.
In the present case, the plaintiff had notice that any statement respecting the subject of the insurance made by her to the agent, or.by him to her, would not bind the insurer unless in writing. According to the rule declared in the Mensing case, it would seem that the knowledge of the agent that the property was misdescribed in the application was of no consequence and would not.validate the risk. If the insurer had the right to limit the power of its agent in the one case, it is difficult to see why it did not in the other. In principle the two cases are quite alike. ' If the Mensing *91case had not been trenched npon or overthrown by later cases, which we are h'onnd to follow, it would appear this case was incorrectly decided.
In the later case of Shoup v. Ins. Co., 51 Mo. App. 286, where the policy expressly provided that the insurer should “not be bound by act or statement made to any agent unless inserted in the contract. ’ ’ In the application for the insurance it was stated that the applicant was the sole owner in fee of the land on which the subject of the proposed- risk stood, while in truth the applicant only had a homestead interest therein. It was shown that the applicant informed the agent who solicited the insurance and wrote the application of the true state of the title. In-the opinion in that case, after quoting what was ruled in the Mensing case, it was held that the limitation on the agent’s authority was directly in the way of the plaintiff’s recovery. That the plaintiff could not be permitted to show that the agent was informed of the true condition of the title.
In Jenkins v. Ins. Co., 58 Mo. App. 210, the limitation contained in the policy was that, “no act or deed or promise made by any agent, not indorsed 'hereon, shall be construed into.a waiver of the printed terms or conditions, and any changes or waivers can only be made in writing by either the secretary or the district agents at Montgomery City, Missouri.” The policy also contained a stipulation that, “if the assured without written permission hereon shall now have, or hereafter make or procure any other contract of insurance, whether valid or not, without consent indorsed hereon, the policy shall be void.” It appears that after the issue of the policy the insured without the written consent of the insurer or its agents, procured other insurance on the same property. The insured was not permitted at the trial to prove that the agent of the insurer was apprised of the other insurance and this refusal on the appeal was held proper. It was further held that the limitation was effective and that a soliciting agent in the face of such a limitation could not waive the conditions of the policy.
*92But in Springfield Laundry Co. V. Ins. Co., 151 Mo. 90, both, the Shoup and Jenkins cases are expressly overthrown and declared “not longer to be followed, ’ ’ and thereby declaring, as said by us in Wolf v. Ins. Co., 86 Mo. App. l. c. 583, that the soliciting agent of an insurance company with limitations imposed upon his authority similar to those in that case, known to the insured, may waive the conditions of the policy. The limitation in the Wolf case just referred to (75 Mo. App. 336; 86 Mo. App. 580) was similar to that in the Jenkins case, but being obliged to follow the ruling in Laundry Co. v. Ins. Co., supra, we changed front, as will be seen by reference to the two opinions delivered on the second appeal — 86 Mo. App. ante.
The Mensing case is in no way distinguishable from the Shoup and Jenkins, or the first of'the Wolf, cases, and as the two former of these have been overthrown by the Supreme Court, and the latter by ourselves, we can not see why it — the Mensing case — may not, too, like its parallels referred to, be considered*'as overruled and “no longer to be followed.”
The question has been pertinently asked whether , or not under the law of principal and agent, as it has been declared in this State, in so far as applicable to insurance companies, an insurer can in any case impose a limitation upon the authority of his agent that will be efficacious, even though such limitation be in writing and brought to the notice of the insured? The only answer we can make is to- cite Springfield Laundry Co. v. Ins. Co., ante, and James v. Ins. Co., 148 Mo. 1.
It is needless to say that if our ruling in this case is opposed to that in the Mensing case, that it is in accord with the last of the Supreme Court.
The motion will accordingly be denied.