Motors Insurance Corporation v. Freeman

HALLEY, Justice

(dissenting).

The evidence in this case is overwhelming that the plaintiff deliberately burned his automobile in order to collect the insurance over and above the mortgages on the car.

The majority opinion has overlooked both the law and the facts applicable to this case. This man, Easterling, not only was acting in a dual capacity but he represented three interested parties in this matter. He was office manager for the Frank Harber Buick, Inc. He was the agent for Mack Freeman. He wrote insurance for the defendant. I quote from Mack Freeman’s testimony on cross-examination:

“Q. You say you have never seen that policy? A. No.
“Q. Where has that policy been since it was executed? Did Mr. Har-ber have it — Flarber Buick Company? Or Mr. Easterling? A. I imagine it was with my papers.
“Q. The only time you have ever seen the policy, it was in the possession of Mr. Easterling, or Harber Buick Company? A. Yes.
“Q. Are you acting here for them in bringing this lawsuit or are you acting for yourself? A. I am acting for myself.
“Q. You are acting for them to the extent of these two mortgages, aren’t you? A. It’s included.
“Q. That’s included. You say you never saw the application? A. No, sir.
“Q. You did understand, however, that you would have insurance on your automobile? A. Well, they said it would be covered. I didn’t know with who, or how, or under what conditions. They said it would be covered.
“Q. That was part of the deal you made there with them, that you would have insurance? A. That was their protection.
“Q. It is their protection, Yes, I grant you that. That’s one of the points I have in this lawsuit; but it was part of your deal that you were to have insurance, and it would be charged into the deal and you’d pay for it? A. Yes, sir.
“Q. Under those circumstances, it was all right with you for Mr. Easter-ling to sign your name to this application here ? A. Sure.
“Q. You say, ‘Sure, that was all right.’ He represented you, then, and acted for you in making this application and obtaining the insurance ?
“Q. Is that correct? A. To cover the car.
“Q. He was acting for you in making this application to obtain this insurance. A. Yes, sir.”

(Objections, exceptions and colloquy between counsel and court and counsel have been omitted)

Easterling represented two entities whose interests to that of the insurance company were adverse. Certainly Frank Harber Buick, Inc. was interested in having the car mortgaged for at least the amount of their mortgages and Easterling knew that if he revealed the fact that there were *332two mortgages on the car which totaled more than three thousand dollars the insurance company would not accept the application. Easterling was Freeman's agent in signing Freeman’s name to the application.

The law is well settled that as a general rule the same person cannot act as agent for the insurer and the insured without knowledge and consent of both and in cases where dual agency is permitted the agent cannot represent conflicting interests unless he acts in entire good faith and with due authority from both principals.

This Court said in the case of Great American Ins. Co. v. Farmers’ Warehouse Co., 91 Okl. 118, 217 P. 208:

“A man cannot be the agent of both parties to a transaction; and, where the agent of an insurance company writes a fire policy covering property of a corporation in which he is a stockholder, director, and secretary and treasurer, without the knowledge or consent of the insurance company, such policy is void under the rule that a man cannot serve two masters.”

There is nothing in this action to make it an exception to the general rule. We cannot imagine a case which illustrates more forcibly why one should not be permitted to represent adverse interests than this one which arises in the highly competitive automobile business. Easterling naturally was greatly concerned in consummating the sale to Freeman for the automobile company’s profit. The rule is as it is in these cases because the weakness of human nature has been taken cognizance of. Here Easterling in his desire to help the automobile firm failed to reveal to the insurance company, as he was honor bound to do, that there were two mortgages on the car. He was also acting for the insured when he signed Freeman’s name to the application and making it possible for Freeman to get insurance and in an amount which he would not have gotten had Easter-ling told the truth.

This case is distinguishable from that of Home Insurance Co. of New York v. Southern Motor Coach Corp., 171 Okl. 94, 41 P.2d 870, because Easterling had a direct pecuniary interest in the subject matter and occupied a position of fiduciary relationship. The automobile company had the greatest interest as between the plaintiff and it. Their risk was the greatest and Easterling saw that it was being protected. Attention is called to 44 C.J.S., Insurance, §§ 141 and 156; the authorities cited thereunder; 29 Am.Jur., Insurance, section 92 and Ramspeck v. Pattillo, 104 Ga. 772, 30 S.E. 962, 42 L.R.A. 197.

I submit that it would be shocking to permit recovery in cases of this kind. There is too much likelihood for fraud. I cannot but dissent.