#### Lind *v.*The State Automobile Mutual Ins. Assn. et al.

*2(No. 24207 —

Decided March 14, 1934.)

William Lind, plaintiff in error,

will hereafter be called plaintiff, and the State Automobile Mutual Insurance Association, defendant in error, will hereafter be referred to as defendant.

Plaintiff brought action in the Court of Common Pleas of Mahoning county against defendant, under Section 9510-4, General Code, to subject a part of the money provided for in an automobile liability insurance policy issued by defendant to one Larry Marsisch, also called Leroy Mersich, in satisfaction of a judgment secured by Lind against Mersich, growing out of an automobile collision.

Defense was made on the principal ground that Mersich had failed to comply with the terms of his policy by giving defendant written notice of the suit filed against him by Lind.

Evidence was offered by plaintiff that Mersich, an uneducated foreigner, with a limited knowledge of the English language, had bought the liability insurance policy in question at the solicitation of C. E. Taylor of Girard, Ohio, agent for the defendant, who told Mersich at the time that if he ever had an automobile accident to come and see him about it, or words to that effect. Mersich testified that Taylor collected the premium of $25.50 from him in three installments.

On March 15, 1925, while the policy was in force, a *3collision occurred between the automobile owned and driven by Mersich and automobile owned and driven by Lind. Mersich testified that he went to see Taylor the day after the collision and gave him an oral account of what had occurred; that Taylor made some notations on a piece of paper and stated that he would make an investigation and notify the insurance association. Mersich stated that he made several subsequent visits to Taylor and was told that the matter had been attended to.

It was admitted by counsel for defendant that a written report of the accident upon a form prepared and furnished by defendant, ostensibly bearing the signature of “Larry Mersich,” had been received at the home office of the defendant in Columbus, Ohio, on March 30, 1925, through C. L. Bird, another agent of defendant at Niles, Ohio. As evidence that this report had been acted upon by the association, plaintiff introduced as an exhibit in the case a memorandum from the files of the defendant, in the following form: “Agent, C. R. Taylor. Contract No. 61033. Claim No. 16721.

“Paid $9.00., Coverages: Indemnity.

“Subscriber’s name, Larry Marsich. Address, McDonald ave. Town, McDonald, Ohio.

“Date of accident, March 15, 1925.

“Kind of claim, Pd.

“Description of Automobile.

“Name of car, Star. Type of body, tour. Year model, 1925.

“Motor No., Z43324.

“Date, 4-16, 1925.

“Adjuster’s remarks: Agt. Bird says he was talking to the assured recently and he has not heard from the Pd since the accident. Bird advises closing the claim as the Pd was at fault and will not make claim. Richards.”

Richards, whose name appears on the memorandum, *4was then supervisor of claims for the defendant at its home office.

Mersich further testified, without objection, that a man had come to his home, in company with C. R. Taylor, during his absence, representing himself to be connected with the defendant association, and that about April 16, 1925, C. L. Bird, agent of defendant at Niles, Ohio, called on Mersich and talked with him concerning the accident.

In September of 1926, Lind, the plaintiff herein, brought suit against Mersich for damages sustained in the collision referred to, asking judgment for $10,292. Summons was served on Mersich on September 14, 1926.

Mersich, supported by two of his brothers, testified that on the following day he took the summons to C. R. Taylor, who was still defendant’s agent, and showed it to him; that Taylpr read it, smiled, and stated' that he would write to the insurance association and that Mersich “didn’t need to bother with anything.”

Taylor took the witness stand and denied that Mersich had ever presented the summons to him. He also testified that he prepared the report of the accident, but at the request of and for Mersich; that Mersich signed it; and that he sent it to C. L. Bird, defendant’s agent at Niles.

Lind secured judgment against Mersich for $830, representing damages to his automobile and his person, and then after the expiration of thirty days brought the instant suit against the defendant insurance association in this amount, which was subsequently reduced to the sum recovered for personal injuries alone, to comply with Section 9510-4, G-eneral Code.

This case has been three times tried in the Court of' Common Pleas, has been presented an equal number of times to the Court of Appeals, and has been in this *5court once, *State Automobile Mutual Insurance Assn.*v. *Lind,*122 Ohio St., 500, 172 N. E., 361.

Upon the last trial plaintiff recovered a verdict and judgment against the defendant for $750, with interest, which the Court of Appeals reversed for error in the charge, and rendered final judgment for the defendant on the ground that there was no evidence to support the judgment of the lower court. The case is now in this court upon allowance of the motion to certify the record. Additional evidence as disclosed by the record will be commented on in the opinion.

*Messrs. Nicholson & Warnoch,*for plaintiff in error. *Mr. B. B. Bridge*and *Messrs. Barnum, Hammond,*

*Stephens & Hoyt,*for defendant in error

the State Automobile Mutual Insurance Association.

Zimmerman, J.

To recover in this action it is incumbent on the plaintiff, Lind, to show that Mersieh complied with the terms of the liability insurance policy, or that there was a waiver of such terms. Plaintiff stands in no better position than Mersieh in this respect. *Stacey*v. *Fidelity & Casualty Co. of New York,*114 Ohio St., 633, 151 N. E., 718.

That part of the policy with which the defendant claims Mersieh did not fully comply, thus defeating plaintiff’s suit, is as follows:

“The association will, at its own cost but subject to the limits expressed in the foregoing clauses, settle or defend any claim or suit for damages by reason of personal injury or damage to property of others arising out of any accident covered by this policy, provided the assured shall have given the association written notice immediately following the accident causing such injury or damage to property and shall thereafter give like notice of any claim or suit for damages, forwarding immediately to the association *6every notice, summons or process as soon as the same shall have been served.”

Defendant also relies on the following clause:

“No condition nor provision of this policy shall be altered or waived except by written endorsement attached hereto and signed by the association, nor shall any notice to or possessed by any agent or other person be held to effect a waiver or change in any part of this contract.”

Plaintiff contends there is sufficient evidence presented to show a valid waiver of these provisions of the policy. He argues that since the defendant received and acted upon notice of the Mersich accident, transmitted by its agent C. E. Taylor, who in the first instance received and acted upon oral notice from Mersich, the implied conduct of the defendant was such as to invite Mersich to give Taylor like oral notice of the suit filed against him, and that under the circumstances defendant is precluded from successfully defending the action upon the failure of Mersich to comply strictly with the provisions of the policy first quoted.

Plaintiff further contends that the evidence shows Taylor to have been more than a soliciting agent of defendant, with limited authority; that the course of conduct pursued by him, with the tacit assent of the defendant, was such as to enlarge his authority into that of an agent with apparent power to waive the conditions of the policy relating to written notice of an accident and subsequent written notice of suit.

Defendant stands squarely on the provisions of the policy, claiming there was no waiver of any kind; that it received written notice of the accident, apparently signed by Mersich, as stipulated in the policy; that it received no notice of suit; and that Taylor was no more than a soliciting agent, without real or apparent authority to waive anything.

It is now established by the decided weight of *7authority that clauses in insurance policies prohibiting waiver unless the same are indorsed on such policies in a prescribed manner, refer only to provisions and conditions constituting a part of the contract of insurance, and do not affect conditions to be performed after loss, such as furnishing proofs of loss, sending immediate written notice of an accident, and the giving of other notices. 22 Ohio Jurisprudence, paragraph 642, page 742 *et seq.;*14 Ruling Case Law, paragraph 518, page 1346; *Ohio Farmers Ins. Co.*v. *Cochran,*104 Ohio St., 427, 135 N. E., 537; *Hartford Accident & Indemnity Co.*v. *Randall,*125 Ohio St., 581, 183 N. E., 433; *Reilly*v. *Linden,*151 Minn., 1, 186 N. W., 121; *Concordia Ins. Co.*v. *School District No. 98 of Payne County, Oklahoma,*282 U. S., 545, 51 S. Ct., 275, 75 L. Ed., 528.

In the note found in 75 L. Ed., at page 529 *et seq.,*many authorities from a number of jurisdictions are cited in support of this principle.

We are aware that approval of a contrary rule was expressed in *Travelers’ Ins. Co.*v. *Myers & Co.,*62 Ohio St., 529, 57 N. E., 458, 49 L. R. A., 760, but the later holdings of this court in the cases above cited are in accord with the majority view.

Conditions in insurance policies as to furnishing various notices after loss in a certain manner, being for the benefit of the insurer, may be waived by words or conduct inconsistent with an intention to enforce strict compliance, from which the assured is led to believe that such compliance is unnecessary. *Twin City Fire Ins. Co.*v. *Stockmen’s National Bank of Ft. Benton*(C. C. A.), 261 F., 470, 476; *Home Ins. Co. of New York*v. *Sullivan Machinery Co.*(C. C. A.), 64 F. (2d), 765, 767.

Waiver of conditions as to immediate written notice ■ of an accident, furnishing proofs of loss, and similar notices, may be effectively accomplished through the words, acts, or conduct of an authorized agent of the *8insurer, and whether or not such waiver has taken place is generally a question of fact for the jury. *Ohio Farmers Ins. Co.*v. *Cochran, supra; Hartford Accident & Indemnity Co.*v. *Randall, supra; State Automobile Mutual Ins. Assn.*v. *Lind, supra; Smith*v. *U. S. Fidelity & Guaranty Co.,*109 W. Va., 280, 153 S. E., 584; *Gough*v. *Halperin,*306 Pa., 230, 159 A., 447; *Fray*v. *National Fire Ins. Co.,*341 Ill., 431, 173 N. E., 479; *Lee*v. *Casualty Co. of America,*90 Conn., 202, 96 A., 952; *General Motors Acceptance Corp.*v. *American Ins. Co.*(C. C. A.), 50 F. (2d), 803; *Hartford Fire Ins. Co.*v. *Kiser*(C. C. A.), 64 F. (2d), 288.

The authority of an insurance agent, or any other kind of agent, may be established by showing a course of conduct on his part knowingly permitted by his principal, through which he has the apparent power to accomplish those things he undertakes to do. 1 Ohio Jurisprudence, paragraphs 33 and 34, pages 673-675; 21 Ruling Case Law, paragraph 34, pages 854, 855.

Taylor had been agent for the defendant for a number of years. He took the application of Mersich for the insurance policy and delivered the policy to him, upon the outside of which was printed, “Agent, C. R. Taylor.” Mersich testified that Taylor collected the total premium of $25.50 in installments, which was not expressly denied. The record indicates that this premium was received by defendant, less the deduction by Taylor of his commission from the first payment. Taylor testified that he made out the written report of the Mersich accident, and sent it to defendant through its Niles agency. Defendant admits its receipt. Taylor further testified that he had made out many accident reports during his employment by defendant. Careful reading of the record fails to show that the defendant voiced objection to any of these acts.

In the case of *Maltby*v. *Empire Auto Ins. Assn.,*239 Ill. App., 532, it is held, in the second paragraph of the syllabus:

*9“Notice of loss required to be given to an insurer may be waived by an agent of tbe company, if he has authority to solicit insurance, receive and forward applications, receive and deliver policies, and collect the premiums.”

*Travelers’ Ins. Co.*v. *Edwards,*122 U. S., 457, 7 S. Ct., 1249, 30 L. Ed., 1178, is an interesting case on the question of waiver. There the policy provided that upon the death of the insured immediate written notice thereof should be given to the company at Hartford, Connecticut, and that within seven months thereafter the company should be furnished with written proofs thereof. There was a further stipulation that no other person than the president or secretary could alter or waive any of the conditions of the policy, or make agreements binding upon the company. The insured died, and oral notice of this fact was communicated to the local agent, who, in turn, orally communicated it to the company. Proofs of death were given to the local agent, who retained them for a period of more than seven months. In affirming a judgment against the company the Supreme Court of the United States held, as stated in the syllabus, as reported in 30 L. Ed., 1178:

“That the whole course of dealing by the defendant Company shows that it recognized a local agent as its agent in receiving oral notice and proofs of the death of the insured, and so acted upon his information as to waive a strict performance of the contract, which required written notice of-death and proofs thereof within a certain time, the proofs having been retained by the local agent beyond the required time.”

Of course, there is a diversity of opinion among the courts as to the authority which an agent must have in order to waive conditions in policies as to the various notices required after loss. A number of the cases are collected in 7 Cooley’s Briefs on Insurance (2d Ed.), 5966 *et seq.,*and in 2 Couch, Cyclopedia of Insurance Law, 1731 *et seq.*

*10It is our view that there is enough evidence in the record of this case to establish Taylor as an agent with sufficient apparent authority to waive conditions of the policy relating to written notice of an accident and like notice of suit.

As has been noted, the defendant association admits that it received and acted upon written notice of the accident sent by Taylor. This in itself was a waiver of the strict terms of the policy requiring written notice to the association direct from the assured.

A generally accepted tenet of law is that if defective proofs of loss are sent to an insurer, or if they are furnished by the wrong person, good faith requires the insurer to give notice of any objection within a reasonable time; and if it fails to do so, retaining the proofs and acting thereon, such conduct constitutes a waiver of its right to insist that the requirements of the policy have not been met. 33 Corpus Juris, 27; 7 Couch, Cyclopedia of Insurance Law, 5590.

By analogy, in receiving notice through its agent the defendant was advised that its assured was dealing with the agent in respect to a matter which should have been communicated directly to it, and in the es> ercise of good faith and fair treatment it should have notified the assured of any objection. Through silence there was at least an implied invitation to the assured that he might properly communicate with the agent concerning the suit, as he had communicated with him in reference to the accident. True, the defendant claims that the written notice of the accident received bore the purported signature of Mersich; but this does not change the fact that it accepted such notice from the hands of its agent without objection, nor does it remove from the record the testimony of Mersich that he gave oral notice to the agent and signed nothing. The jury had the right to believe the testimony of Mersich that he gave notice of the accident, and, later, notice of suit, and the manner in which this was done.

*11Assuming the testimony of Mersich to be true, he knew that the course of conduct he had taken in giving oral notice of the accident had brought results; that agents of the defendant had come to see him regarding it. In the absence of advice to the contrary, it was ' but natural that he should have given like notice of suit.

The defendant seeks escape on the further ground that Taylor was acting as agent for Mersich, and not for it, in sending notice of the accident and in receiving any subsequent notice of suit.

There is testimony by both Taylor and Mersich lending support to this contention, but it is not conclusive. The jury found against the defendant in these particulars, and we are not disposed to disturb that finding.

Mersich was a foreigner, of little education, and not overly familiar with the English language. He testified that Taylor was the only person connected with the defendant association whom he knew, and that Taylor had advised him to see him, Taylor, in connection with matters pertaining to the policy.

While the case of *LeBlanc*v. *Standard Ins. Co.,*114 Me., 6, 95 A., 284, was decided under a Maine statute providing that agents of insurance companies shall be regarded as in the place of the companies in all respects concerning any insurance effected by them, we think the general observation of the court in the opinion, as applied to the instant case, is appropriate:

“The statute recognizes what common experience teaches. Men commonly do all their insurance business with agents — agents appointed by the companies. They have no direct dealings with the companies. * * * They go to the agents when losses have occurred, and pursue the steps pointed out by them in proving the losses. To the insured the agent is for all practical purposes the company. Good public policy then requires that the companies that appoint these agents *12and hold them out as their representatives shall be bound by what they do, and that if "an agent acts without authority, or in excess of authority, his principal should bear the consequences, rather than the insured, who trusted him.”

While the record before this court in *State Automobile Mutual Ins. Assn.*v. *Lind, supra,*was not the same as is now presented, the principles of' law therein expressed are still' applicable. Our opinion is that there was sufficient evidence of waiver in the record now before us to justify submitting the issue to the jury for its determination.

Contention is made that the special charges given the jury before argument, and part of the general charge, are prejudicially erroneous. An examination of these charges shows them subject to criticism, but when they are considered in the light of the whole record we are unwilling to hold them so prejudicial and misleading as to require reversal. *Jaeger*v. *Converse, Admr.,*87 Ohio St., 486, 102 N. E., 1125; *Fox*v. *Jewell,*91 Ohio St., 409, 110 N. E., 1059.

It follows that the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.

*Judgment of the Court of Appeals reversed amd that of the Common Pleas affirmed.*

Weygandt, C. J., Allen, Stephenson, Matthias and Bevis, JJ., concur.

Jones, J., concurs in the judgment.