specially concurring.
While I concur in the result reached by the majority, I disagree with the analysis by which the result is reached.
First, it should be made clear that this action is not one by the insured or his estate. It is apparent that the insured made a full disclosure to Philippi, Investors’ agent, and Philippi issued the policy with apparent authority to do so. Therefore, we need not construe the policy, indulging in a construction in favor of the insured.
Second, it should be made clear that the only issue is whether Philippi acted within its authority as agent for Investors in issuing the policy. In this connection, it is apparent that Philippi had conflicting interests in that it is the beneficiary of the policy it issued to one of its purchasers who was dying of cancer, and was also *220the agent of the insurer. This conflict is inherent in credit life insurance where the creditor is the insurer’s agent. Under these circumstances, Investors’ instructions to Philippi that eligibility for insurance required that the debtor be "actively employed” at least placed a duty on Philippi to inquire of Investors whether, under the agreed facts, the debtor was eligible. No inquiry was made, and Philippi ought not to benefit by its failure to carry out its agency with complete fidelity.
Accordingly, I would put the loss on Philippi without construing the insurance policy, which is not involved here.
Lee and Gillette, JJ., join in this specially concurring opinion.