TURNER, J. On January 3, 1912, in the of the premium due him on the delivery of district court of Pontotoc county Belle D. Thomas, defendant in error, sued the American Bankers' Insurance Company, plaintiff in error, on two life insurance policies issued by it, one insuring the life of Bowline F. Thomas, her husband, in the sum of $2,000, and the other insuring his life for $1,000, both in her favor. The policies were issued upon application made by him as part of the contract both of which provide that the same "shall not take effect until the same shall be issued and delivered by the company, and the first premium paid thereon in full, while my health is in the same condition as described in this application," which was therein stated to be good. The petition substantially states that, although at the time the policies were delivered the insured was sick and died the next day, defendant is estopped to urge that the same did not take effect by reason of certain facts alleged in the petition as constituting a waiver. After demurrer thereto had been filed and overruled and defendant had answered, in effect, a general denial and certain special pleas and plaintiff had joined issue by reply, there was trial to a jury, and judgment for plaintiff for the amount of both policies with interest and defendant brings the case here.

Both sides concede that the liability of the company turns upon the question of whether the risk attached. Defendant says it did not because it is urged one Martin, who delivered the policies, was without authority so to do, or to waive the condition, precedent therein, that risk would not attach unless the same was delivered while the insured was in good health.

the policies in question, and also having theretofore received from Smith a letter requesting him not only to make settlement on certain policies that had come in, but also on "any other policies that may come in," Martin, while the insured was in good health, being informed that the policies were at the bank for delivery, on about February 1st, informed the deceased where they were, and if they wanted them they would go get them, whereupon they went to the bank. There Martin left the insured outside and went into the bank and got them, but, on his return some 45 minutes later, the insured was gone. He was taken sick on February 3d, and no further effort was made to deliver the policies until February 8, 1911. On that day N. T. Heard, who was collecting for the bank, having in his possession a key thereto, learned that the insured was sick and so informed Martin, who requested him to ascertain whether insured wanted the policies, and, if so, to get them from the bank and deliver them. Upon learning that the insured wanted the policies, Heard, after banking hours, telephoned the cashier to that effect, and that the insured was sick, whereupon the cashler told him to go to the bank and get the poliIcies and leave the premium, which he did by entering with his key and leaving with the bank a check for the amount thereof, drawn by the son of the insured, which was paid, and its proceeds the next day placed to the credit of the defendant company. Upon receiving the policies Heard took them to his safe, and the next morning turned them over to one Bishop, who delivered them to the insured, who died the next day. Under this state of facts no risk attached.

[1] There is no dispute as to the essential facts. The evidence discloses that on Decem- That part of the policy which provides that ber 5, 1910, the insured made application in the same shall not take effect until it is dewriting to defendant at Stonewall, through livered by the company while the insured is one Edgar D. Smith, its special agent, for in good health prescribes a condition prethe policies in question, therein representing cedent to the attachment of the risk under his health to be good. Smith recommended the policy. 1 Cooley's Briefs on the Law of the acceptance of the risk and sent the same Insurance, p. 451. Recognizing it to be such, to the home office at Chicago. There the poli- plaintiff properly pleaded a waiver thereof cies were issued and sent to the First Nation- by setting up the facts as stated. Western, al Bank at Stonewall, under an arrangement etc., Ins. Co. v. Coon, 38 Okl. 453, 134 Pac. 22; with the bank to turn them over to any one Anders v. Life Ins. Clearing Co., 62 Neb. having a right to receive them on payment 585, 87 N. W. 331. Favoring liability, she of the premiums, which was to be credited to contends that the knowledge of Martin of the the account of the company by the bank as ill health of the insured at the time the polits depository. At the time the policies ar-icy was delivered was the knowledge of the rived H. B. Martin was the local soliciting company and a waiver of the condition. Not agent of the defendant theretofore appointed so. Assuming that Martin was the agent of by Smith under an agreement in writing with the company at that time, with authority to the company for a certain per cent. of the deliver the policies, it failing to appear that first year's premium on business written and he had anything to do with the execution settled for by himself, and for another per thereof or the acceptance of the risk, his cent, of the premium on business written as knowledge was not that of the company. In a result of his personal assistance. He could Merchants' & Planters' Ins. Co. v. Marsh, 34 receive no money due or to become due ex- Okl. 453, 125 Pac. 1100, we held that the cept in exchange of premium receipts signed knowledge of the agent was the knowledge by an executive officer of the company. Hav- of the company only where the authority of ing assisted Smith in securing the applica-such agent, derived from the company, was to tion in question, and being entitled to part | solicit applications and execute and deliver

contracts of insurance as an alter ego of the insured. Upon its arrival on August 8, 1909, company, and that it was only in such case pursuant to instructions, the policy was dethat he had power to waive the conditions of posited for him in the safe of the soliciting the policy. In that case the agent was, as agents, along with other private papers of here, a local or soliciting agent, and there the insured kept there by him. Two days bethe policy sued on was, as here, a "home of- fore that time the insured received a fatal infice policy," or one issued direct by the presi-jury from which he died on the night of Audent and secretary of the company as dis-gust 11th. On August 6th, one of the solicittinguished from one issued by the local agent. ing agents visited the insured and knew of There, in the syllabus, we said: his injury. The court said:

"A local agent of an insurance company, whose only power is to solicit applications for insurance, and forward them to the company for approval, when, if approved, the company issues the policy and causes it to be delivered to the insured, has no power to waive any of the provisions of the policy so delivered.

Also in keeping with this rule is Des Moines Ins. Co. v. Moon, 33 Okl. 437, 126 Pac. 753. There we said:

*

"There can be no doubt that it is competent for the parties to stipulate in the application for insurance, as here, that the policy shall not be effective or binding until delivered to, and accepted by, the insured while in good health and the payment of the first premium is made. It is said that a contract of life insurance is not complete until the last act necessary to be done by the insured, under the conditions of the contract, after acceptance of the application by the company, has been done by him, and the * Where the local agent has the pow-courts, therefore, in proper cases, sustain such er to accept a risk and deliver a policy of in- agreements which operate to postpone the taking surance, and is advised and has full knowledge, effect of the policy until the delivery and preat the time of the delivery of the policy, that mium payment while the insured is in good certain conditions of the policy, which may be health. See 1 Bacon, Life Ins. (3d Ed.) § waived, are violated, such policy is binding upon 272; Kilcullen v. Met. Life Ins. Co., 108 Mo. the company, notwithstanding the fact that it App. 61, 82 S. W. 966; Misselhorn v. Mutual contains a provision that none of the company's Reserve, etc., Life Ins. Co., 30 Mo. App. 589; officers or agents can waive any of its provi- McGregor v. Met. Life Ins. Co. [143 Ky. 488] sions, except in writing, indorsed upon the poli- 136 S. W. 889. But though such be true, the cy. This case, unanimously concurred in by provision for thus suspending the policy, as an the members of the court, settles the rule in this effective contract, until the first premium is jurisdiction as to contracts of insurance written paid and its delivery, while the insured is in after the admission of the state. * good health, is for the benefit of the insurer, and obviously may be waived by it or by its Of course if the local agent had not pow- agent possessing authority with respect to that er, as here, to accept the risk, he had no pow-matter. See Rhodus v. Kansas City, etc., Ins. er to waive the condition precedent in the Co., 156 Mo. App. 281, 137 S. W. 907. * policy. Cases relied on by plaintiff which But it is insisted that a mere soliciting agent, such as Cummings, is without authority to hold the contrary practically under the same waive the condition in the policy here relied upstate of facts fail to draw this distinction, on, and, for the purpose of the case, the propoand seem to hold that the knowledge of a sition may be conceded as true." mere soliciting agent of the company of the ill health of the insured at the time of the delivery of the policy is the knowledge of the company, and hence a delivery with such knowledge constitutes a waiver of the condition under consideration. They are Roe v. National Life, etc., Co., 137 Iowa, 696, 115 N. W. 500, 17 L. R. A. (N. S.) 1144; Connecticut, etc., Ins. Co. v. Grogan (Ky.) 52 S. W. 959; N. W. Life Ins. Co. v. Findley, 29 Tex. Civ. App. 494, 68 S. W. 695; National Life Ins. Co. v. Twiddell (Ky.) 58 S. W. 699; Home Forum Ben. Order v. Varnado (Tex. Civ. App.) 55 S. W. 364, and others. But the distinction is referred to in Bell v. Ins. Co., 166 Mo. App. 390, 149 S. W. 33. In that case the insured, who was plaintiff's brother, died at Nogales, Ariz., as a result of injuries received while working as a telegraph lineman. On July 17, 1909, he made application to defendant for a policy of life insurance, payable in event of his death to plaintiff. He made it to defendant's soliciting agents at that place, and paid the first annual premium cash in hand. The application was forwarded to defendant by mail, and duly received in St. Louis, Mo., on July 23, 1909. The policy was conditioned the same as here. On July 27th, the application was duly accepted, and the policy issued and was mailed August 4, 1909,

Whereupon the court proceeded to consider whether the company, under the facts in that case, had waived the condition in the policy relied upon. We are therefore of opinion that Martin was without authority to waive the condition relied on and that plaintiff cannot recover unless defendant is estopped to deny that liability attached by reason of receiving and retaining the premiums as alleged in the petition. Joining issue on these allegations, defendant by answer in effect admitted accepting the premiums as stated, but pleaded in avoidance that it tendered them back to a representative of the assured and demanded a return of the policies, which was refused, and for that reason, it is urged, defendant is not estopped to assert that no liability attached under the policies.

[2] On this point there is no conflict in the evidence. It discloses that the check which paid the premiums was drawn by Duard Thomas, the son of plaintiff and the assured; that it was received by the bank, cashed, and the proceeds placed to the credit of the company, as directed by the company, and there it remains, so far as this record discloses. Martin, the local agent, knew of the death of the insured on the day it occurred, and communicated it to the company, but just when

is disclosed in a letter dated Chicago, March In Pacific Mut. Life Ins. Co. v. McDowell, 28, 1911, addressed to him and signed by Ed- 42 Okl. 300, 141 Pac. 274, this court, in an gar D. Smith, in which Smith informed him opinion by Harrison, C., in the syllabus said: that the company would resist the claim. "1. Where a policy insures against accident Heard informed the company through Frank for a period of one month only, but provides C. Rogers, their attorney, on March 11, 1911, month to month by the payment of monthly prethat it may be renewed and kept in force from receipt of which is acknowledged in a let- miums on a certain day of each month, and that ter from him to Heard, dated Chicago, March it shall be void and of no force and effect if 15, 1911, in which he informed Heard that the such payments are not made on or before the secretary of the company had recently visit-visions, being inserted solely for the benefit of day mentioned in the policy, such forfeiting proed Stonewall and made an investigation of the insurance company, may be waived by the the facts in the case and the board of direc- company if it so desires, and such waiver on tors had authorized him to state, "that they the part of the insurance company may be inferred from acts, as well as words. will refuse to pay the policy"; also that:

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 30; Dec. Dig. 6. CONSTITUTIONAL LAW ~42 1. CONSTITUTIONAL LAW 240, 276, 296TIONALITY-DETERMINATION BY COUrts. INSURANCE 3 DUE PROCESS This court will not pass upon the constituEQUAL PROTECTION-POWER TO CONTRACT-STATU-tionality of an act of the Legislature nor of any of its provisions until there is presented a proper case in which it is made to appear that the person complaining is entitled to the benefits of said act or about to be subjected to some of its burdens or penalties.

of.

[Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 187-191; Dec. Dig. 125.] 9. INJUNCTION 7- ADEQUATE REMEDY AT LAW-RIGHT OF APPEAL-ORDER OF STATE INSURANCE BOARD.

Provision having been made for an appeal to this court from any regulation, order or rate adopted by said board, said provision gives a speedy and adequate remedy, and an injunction will not lie to restrain said board from proceeding in a matter within its lawful jurisdiction. [Ed. Note.-For other cases, see Injunction, Cent, Dig. §§ 6, 34; Dec. Dig. 7.]

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by the Insurance Company of North America and others against A. L. Welch, Insurance Commissioner, and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Burwell, Crockett & Johnson, of Oklahoma City, for plaintiffs in error. S. P. Freeling, Atty. Gen., and J. H. Miley and Smith C. Matson, Asst. Attys. Gen., for defendants in error.

HARDY, J. Plaintiffs in error brought suit in the district court of Oklahoma county, on behalf of themselves and others similarly situated, against defendants in error, seeking to enjoin defendants in error, as the state insurance board, from enforcing the provisions of an act of the Legislature, referred to as House Bill No. 70, being chapter 174, Sess. Laws 1915, p. 340, which created a state insurance board, prescribed the powers and duties thereof, and prescribed certain regulations in reference to the conduct of insurance within this state. The parties will be referred to as they appeared in the trial court.

of said insurance board, which board had thereafter organized and promulgated certain rules and regulations for the government of said board and the insurance companies and their agents doing business within this state. The case came on for hearing on the application of plaintiffs for a temporary injunction, on the 7th day of August, when the court denied the temporary injune1915, at which time evidence was introduced, tion, and plaintiffs bring error.

[1] The petition attacks the validity of said House Bill No. 70 because it is in violation of the Constitution of the United States and of this state, an unwarranted interference with the power of plaintiffs to contract, a deprivation of property without due protection of the laws. Counsel in their brief cess of law, and a denial of the equal proand oral argument concede the right of the state to regulate the ratęs charged by insurance companies, but do not concede the validity of other regulations prescribed by the act.

[2] The power of the state to regulate the business of insurance has frequently been before the courts in recent years. This question was presented to the Circuit Court of the United States for the District of Kansas in the case of German Alliance Ins. Co. v. Barnes (C. C.) 189 Fed. 769. The Legislature of Kansas had passed a law conferring upon the superintendent of insurance of that state authority very similar to the authority conferred upon the state insurance board by House Bill No. 70. The Kansas act was in many respects similar to House Bill No. 70, and some of its sections identical with those of the latter act. The plaintiff in that case sought to enjoin the superintendent of insurance from proceeding in or enforcing the provisions of said act, and urged as a reason therefor that said act was an interference with the right of plaintiff to contract, and that it was an appropriation by the state of private property within the prohibition of the Fourteenth Amendment, and that it was beyond the police power of the state to regulate the rates charged by insurance companies doing business in that state. This contention was denied by the court, and the injunction refused; the court being of the opinion that said act was not subject to the objections enumerated. The case was appealed to the Supreme Court of the United States, and in German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189, the judgment of the Circuit Court was affirmed, and Mr. Justice McKenna in a very learned opinion set at rest the authority of the state in the exercise of its police power to regulate the business of insurance and the rates and charges exacted by insurance companies in the conduct of their business.

Plaintiffs alleged that the Insurance Company of North America was an insurance company duly incorporated under the laws of the state of Pennsylvania, and that it had complied with all the laws of this state, and was licensed to do business within the state during the year 1915; that plaintiff Ludlow was its general agent, having charge of its business within this state, and that plaintiff McDaniels was the local agent of said company in the city of Norman, Okl. The petition then alleged the passage of House Bill No. 70, creating the state insurance board, to be composed of the insurance commissioners, fire marshal, and a third member to be appointed by the Governor, and that in pursuance thereof the Governor had appointed Hon. W. R. Samuels as secretary In Citizens' Insurance Co. v. Clay (D. C.) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 151 P.-4