3. Master and servant 405(1)—Evidence insufficient to show contract of insurance prior to accident. E. F. Conlin, of San Francisco, for petitioner. Clarence N. Riggins, of Napa, appearing specially and not otherwise, for respondent Ethel Lamb. Christopher M. Bradley and A. E. Graup Evidence of employer in a proceeding under Workmen's Compensation Act as to acceptance of counter offer of the indemnity company on receiving employer's application stating a certain minimum premium held not sufficient-ner, both of San Francisco, for respondents. ly definite upon which to base a finding that the employer accepted the counter offer prior to the accident. 4. Insurance 130(7)-Acceptance of terms granted by company completes contract before local agent communicates same to principal. If an employer of labor accepts terms granted by indemnity company, the contract of insurance is complete, although the local agent has not communicated the acceptance to the company. 5. Master and servant 405(1)-Finding of authority of agent to bind indemnity company by parol held not sustained by evidence. In a compensation proceeding involving liability of an indemnity company to an employer of an injured servant, evidence held insufficient to support a finding that a local agent of the indemnity company had authority to bind the company by parol from application. 6. Master and servant 405 (1)—Finding of custom that assured was covered from date of application not sustained by evidence. In a proceeding under Workmen's Compensation Act, a finding that it was the custom and the practice that an employer was covered by insurance from the date of his application, where the terms of the application were not unconditionally accepted by the company, held not supported by the evidence. 7. Insurance 129-General agent without authority to issue policy to cover known loss. The general rule is that whenever the par LAWLOR, J. This is a writ of review issued upon the application of petitioner, the Western Indemnity Company, a corporation. The Industrial Accident Commission, on April 23, 1918, made an award in the sum of $2,596.14 against the petitioner and in favor of Ethel Lamb, for the accidental death of her husband, John Lamb, an employé of Dr. Pond, of Napa county, it having been found by the commission that petitioner was the insurance carrier of Dr. Pond at the time of the injury. It appears that Dr. Pond had been engaged in operating a small farm and fruit orchard some 10 or 12 miles from the city of Napa. John Lamb was employed on the place as a man of all work, and, although that kind of occupation does not fall within the Workmen's Compensation Act, both Dr. Pond and Lamb nevertheless elected to come under its provisions. On October 2, 1917, Lamb took a team of horses used on the place to a blacksmith shop in the city of Napa to be shod. About noon, as he was taking the horses out of the shop, they became unmanageable and trampled upon him, inflicting injuries from which he died on October 6. The principal contention of petitioner is that it was not the insurance carrier of Dr. Pond when the accident occurred, and in this connection petitioner makes the claim that the following findings of the commission are without support in the evidence: ties have entered into a contract before loss occurs or the policy has been issued, unless the "(6) That prior to the said 2d day of Octoauthority of a general agent is expressly de- ber, 1917, and on or about the 24th day of Seplimited, the policy, when issued, by operation tember, 1917, the defendant M. B. Pond had of law relates back to the application and is applied to Arthur H. Smith of Napa, the duly dated accordingly, the policy being thereafter accredited and authorized agent of the defendmerely evidence of the contract, but such gen-ant Western Indemnity Company, for a reneweral rule has no application where the parties al of a then expiring policy of insurance coverwere not under contract at the time of loss, ing his liability for injury to his employés, and the general agent is without special au- and had requested said agent to procure for thority to issue a policy to cover the loss. him such policy, to take effect upon the expiraWilbur, J., dissenting. tion of his then existing policy, which would expire on September 25, 1917. That at that time it was the custom and the practice that an assured was covered by the insurance subsequent In Bank. Certiorari to Industrial Accident Commis-ly provided in the policy, from the date of his sion. Proceeding by Ethel Lamb, under the Workmen's Compensation Act, to obtain compensation for the death of her husband, John Lamb, opposed by M. B. Pond, the employer, and the Western Indemnity Company. There was an award of compensation, and the Indemnity Company brings certiorari. .Award annulled. application. That after the application by said (190 P.) eral agents of said Western Indemnity Company duly issued their policy of insurance dated the 25th day of September, 1917, to the said defendant Pond, insuring him against his liability for injuries to his employés, and that on the 10th day of October, 1917, said defendant duly paid to said agent Smith the full premium for said insurance, which premium was duly received and accepted by said agent. (7) That by reason of the facts as set forth in paragraph 6 hereof, the defendant Western Indemnity Company was the insurance carrier of said defendant employer at the time of said injury, and had insured said employer against liability for full compensation for said injury. and said employer is entitled to be relieved from such liability under the provisions of subdivision (e) (2) of section 30 of the Workmen's Compensation, Insurance and Safety Act of 1917." The evidence will sufficiently appear in the discussion. Arthur H. Smith, doing business under the name of "Arthur H. Smith & Co." in the city of Napa, was engaged in placing insurance for various companies, including the Western Indemnity Company. Upon the filing by petitioner with the state insurance commissioner of "a duplicate power of attorney" on July 1, 1917, a license was issued to Smith for the term of one year in compliance with the provisions of section 633 of the Political Code. The license gave Smith authority "to solicit applications for insurance or surety bonds or to effect insurance or surety bonds in the name of said company." This power of attorney was not introduced in evidence, but we shall assume that it corresponded with the license. In September, 1916, Smith secured for Dr. Pond a policy of compensation insurance in "the Massachusetts Company." That policy expired on September 25, 1917. On September 24, 1917, Dr. Pond went to the office of Smith, and "verbally" requested that such policy be "renewed." There is a dispute in the testimony of Dr. Pond and Smith as to whether on this occasion Dr. Pond saw Smith personally or dealt with an employé in Smith's office. Dr. Pond testified that * suance of a policy on account of the premiumminimum premium?" And he answered: office. She did that work that day. I was not "You will have to ask the young lady in the in. had informed him in a letter of June 29, 1917, that the premium rate for compensation insurance would be $10 "at least temporarily," and that Smith also testified that the general agent "The first notice I had that the minimum premium on farm labor policies had been raised by petitioner was when this application was referred to in this case as being $15." Smith stated further that, as the Massachusetts Company had discontinued writing compensation insurance, on September 24 he forwarded to the general agent a written application for coverage for Dr. Pond to begin on September 25, 1917, the application being signed by Smith alone, and in item 14 thereof, opposite the printed words "the minimum premium for this policy," appearing the tigures "$10.00." This application was received on September 25 in the office of the general agent, Arthur G. Nason, who conducted the agency as "Arthur G. Nason & Co." In due course Smith received an answer to the application under date of September 26 to the effect that the minimum premium on farm labor policies was $15, and stating: "We shall hold the application pending receipt of your advices as to whether or not we may write at this rate." On September 29 Smith wrote to Dr. Pond: "We are in receipt of a letter from the company stating that the least they can write a compensation policy on farm labor is $15 min. imum premium. mail if this is satisfactory to you.” Kindly advise us by return There is a further lack of agreement in the testimony of Dr. Pond and Smith as to what occurred after September 24. Smith testified as follows: * "Some time in September, I think after the 15th, I received a letter from Mr. Smith stating "Q. Did you not see him between September that my policy terminated, * * asking me 24 and October 2? A. Me? No. * ** Q. if I wanted a renewal. I gave the let-Do you know whether he came to your office during that interval? A. I couldn't say. Q. Was it reported to you that he had been in there? A. No. I don't recall it if it was. Q. Then he didn't answer your letter of September 29 until after the accident on October 2? A. That is right. * Q. Did you see him on the afternoon of October 2? A. I did. * In my office. He said it would be all right at the $15 premium. * * Q. When Dr. Pond did call on you on October 2 did you then know that this accident had occurred? A. I did." ter to Mr. Smith when I went, and ordered a renewal of insurance. I left it as a reminder. He says, "The premium will be raised.' I was informed that the last premium would be $10 for farmers, and it would be probably $15. Any discussion we had was simply his statement to me that it would be probably not less than $15, and I told him to go ahead. I wanted to be insured even if it was more. He told me right on the start it would probably be that much, 'possibly more,' is the way he put it." Smith was asked: Dr. Pond's testimony is less definite as to "At the time you took that application from when, after September 24, he talked with Dr. Pond, was there any question about the is-Smith about the matter: * a Before the receipt of this letter, and in response to that of October 2, the office of the general agent issued a policy at the $15 rate and dated it October 3. This was received by Smith on October 4. On October 5 he sent the following letter to the general agent: "Q. And did you return afterwards to Mr. Smith's office for your insurance policy, and on what date? A. I can't say as to the first time-the date-but I went and had a talk with Mr. Smith, and he said it was all right. * Q. When did you go back to Mr. Smith after requesting that he have the policy renewed? Was it before or after October 2d? A. Well, my memory is this: that I had another talk with Mr. Smith after order-14425, Milo B. Pond, as you have made an ering a renewal, when he told me that it would be at least $15. 'Well, it might be more,' he said. 'Well, I said, 'I will draw you a check for $15, it doesn't make any difference. If it is more, I will give you more, and if it is less you can refund it.' He said, 'It would not be less.' On October 2d I called again on Mr. Smith and again tendered money which he refused because he did not know exactly what it would be. He had written me a letter, and I think it was dated the 29th of September, that it would be $15. Whether I called between the 29th and the 2d day of October, the date of the accident, I don't remember positively. Q. But * * on October 2d, was it after the accident that On the afternoon of October 2, after Dr. Pond had called on Smith and they were both aware of the injury to Lamb, Smith wrote the following letter to the general agent: "In answer to your favor of the 26th of September in regard to application of Milo B. Pond, would ask that you kindly issue policy at the $15.00 minimum." No mention of the accident was made in this letter. On October 3 Smith wrote again to the general agent: "We herewith inclose you report of accident to John Lamb, employed by Dr. M. B. Pond. "We herewith return you policy No. CC24, 1917, we sent you application asking you ror in dating same. Under date of September to issue the policy, and under date of September 26th you wrote us advising us of the increase in the minimum charge and also stating that you would hold the application pending receipt of our advices. Kindly issue this policy from date of application." No written reply was made to this letter, but Smith testified that the date of the policy was changed from October 3 to September 25, while he was in the office of the general agent on October 8 or 9. From the testimony that follows it would appear that the actual date of this meeting and the alteration of the policy was October 9. A report of the results of the post mortem examination was forwarded from Smith's office to the general agent on the last-mentioned date. On October 10 Dr. Pond paid the $15 premium to Smith, who issued a receipt therefor and delivered the policy to him. Charles M. Wilson, manager of Nason's office, and head of the indemnity insurance department thereof, testified that Smith himself called at the office in San Francisco about October 9, and claimed that Dr. Pond's policy had been incorrectly dated; that on this lastmentioned occasion the witness examined the records of the office, and found that Russell B. Adams, an "underwriter and clerk" in the office, had changed the date of the original application to October 3; that, "as a matter of custom" he, without consulting the general agent or any of his staff, then changed the date of the policy to conform to the time of the receipt of the application-September 25-and delivered the policy with the altered date to Smith. Wilson then knew that "Dr. Pond had an accident to one of his employés." Nason himself testified that he did not learn of the accident until "after October 3. "Q. State whether or not on behalf of Arthur from (190 P.) and in Dr. Milo B. Pond. A., under date of September 26 * the letter from Smith to Dr. Pond under date of September 29. The offer thus made by petitioner was never at any time withdrawn. Indisputably it was accepted by Dr. Pond. What happened in the interim is of no consequence." (Italics ours.) * * * We do not agree with respondents, as will was appear from our discussion, that the letter of September 29 was "superfluous," or that "it * The application was not accepted. Q. Please state what action you took upon the said application. A. On receipt of the application I noted the premium specified was not up to our charge. A letter was written by me to Smith advising of this, and saying the application would be held pending his advices. Q. In acknowledging the said letter from Smith ** * state whether or not it your intention as representative of * Nason to hold Dr. Pond covered under a policy. A. It was not my intention to cover the risk. Q. Please state what your intentions were as to the said application. A. To hold it until advised by our agent as to whether the insurance was desired at the higher rate. Q. Was it at any time subsequently to the receipt of the application your intention to bind or consider said application of any force or effect, or as constituting any insurance covering Dr. Pond? A. No. * * No instructions were ever given me to bind this risk or to write a policy. Q. In issuing a binder for such policy * what has been your custom while employed by Nason? A. A record of risks bound was kept by Nason. The name, date covered, and nature of covering was always kept. Q. Please state fully what course you would have taken had you intended * to hold Dr. Pond covered under a policy. A. A binder would have been issued and recorded as above; in any case there would have been a record of any covering granted." The respondents in their reply to petitioner's supplemental brief take a different position with regard to the evidence as to when Dr. Pond expressed his willingness to accept the $15 rate from that stated in their first brief. It is insisted in their last position that "At the time of the application for a renewal Dr. Pond was told by Mr. Smith that the premium would be raised, and that it would be probably $15 as a minimum. Dr. Pond thereupon informed Mr. Smith that the amount of the premium was immaterial-that he wanted a policy. * Respondents contend that this made a complete meeting of minds on the only issue-the premium." * From this it is argued that the letter of September 29 "was superfluous, and should not in any way be considered in this cause, for the reason that Smith had already been told by Dr. Pond that he wanted the policy regardless of the amount of the premium." (Italics ours.) In their first brief respondents state that * "On September 24, 1917, Pond applied to Smith at Napa for a policy. There may or may not have been some discussion between Smith and Pond * * concerning the premium * at the time the application was made. It is immaterial. * * The of fer of Dr. Pond when it reached the office of the general agent * * was refused. * The petitioner made a new offer to extend coverage to Dr. Pond at an increased price. * This offer of petitioner is contained in the letter to Smith * * * * * is immaterial" what discussion was had on September 24. One reason for setting forth at length the variant positions of respondents is that our interpretation of the findings on this point may appear more clearly. The use of the relative terms "before" and "after" ' in the sentence relating to the notification to Dr. Pond of the increased rate precludes the idea that the commission meant to find that there was a meeting of minds on September 24. As already shown, Smith's testimony was that he personally had, only one interview with Dr. Pond about the rate-after the accident on October 2. We shall assume, for the purposes of this discussion, that the commission found that Smith did discuss the rate with Dr. Pond on September 24. Dr. Pond is less definite as to the number of times he canvassed the premium rate with Smith, but we think his testimony indicates that he meant to convey the impression that he saw Smith three times: (1) on September 24; (2) on a later date before Smith had received the letter of September 26; and (3) after Dr. Pond had received the letter of September 29-but as to this he would not say definitely whether it was before or after the accident. Indeed, Dr. Pond did not testify definitely to any date except October 2, when he called at Smith's office after Lamb was injured. There is further disagreement in the testimony in that Smith stated that he did not know of the increased rate until he received the letter of September 26, while Dr. Pond claims that the higher premium was discussed when he ordered the "renewal." 1 [1] We have said that the finding cannot be interpreted to mean that the contract was concluded on September 24, nor do we think it can be ascertained therefrom when, according to the commission, Dr. Pond consented to the rate. And, unless the conjunctive "thereupon" connotates an interval between the notification and the consent, it cannot be determined whether the commis sion found that the rate was agreed upon before or after the injury. Do the findings refer to the second occasion mentioned in Dr. Pond's testimony? The plausible theory is that they do. The word "thereupon" could properly have reference only to an occasion where there was at once a proposal and an acceptance. The term would not describe Considered either of the other occasions. in connection with the statement that he "again" requested that the policy be issued, "thereupon" indicates that he accepted the rate immediately, and "again" connects up with the original request for a “renewal." And, as further supporting this theory, is the circumstance that, according to the same finding, Smith did not then know what the amount of the premium would be. We think it clear that the finding does not refer either to the first or to the third occasion mentioned in the testimony of Dr. Pond. The word "thereupon" could not allude to the interval-however brief it may have been between the receipt by Dr. Pond of the letter of September 29 and the interview which folllowed in Smith's office. Moreover, it is shown by the letter of September 29 that when Smith sent it he did know "the exact amount of such increase." It is also to be noted that in the sentence we are discussing the phrase found in the preceding sentence "and before the 2d day of October"-is significantly missing. In our opinion it was important for the commission to find whether Dr. Pond accepted the rate on the first, the second, or the third of these occasions, for if it was upon the first or second occasion we should be obliged to declare that the findings are not supported by the evidence. Upon the receipt of the application, whatever the scope or extent of Smith's authority may have been-and we shall consider this later-dence-if it can be said that the evidence the matter of the rate was taken out of his hands by the letter from the general agent of September 26, which constituted a counter offer. So that, up to the time Dr. Pond accepted the counter offer, there was no meeting of minds on one of the elements of the contract. This would be true even if the testimony of Dr. Pond was accepted by the commission that he stated on the first occasion he wanted the insurance, though the premium might be more than $15, or when he was in Smith's office on the second occasion, for upon the counter offer he was called upon either to accept it or to reject it definitely. We must conclude, therefore, that the commission based its findings on the first or second occasion, or both, and not upon the period following the receipt by Dr. Pond of the letter of September 29, although if the findings did relate to the last occasion we are not to be understood to say that the evidence would be sufficient. We are fortified in this conclusion by the testimony of Dr. Pond himself. He admits that he went to Smith's office after the injury. He does not say that he called at any other time on October 2, or that he was in the office more than once after he got the letter. Nor is his testimony definite as to whether he received the letter before or after the accident. We are not losing sight of his testimony that he reported to Smith "immediately" on receipt of the letter; that he thought he received it and saw Smith occasion he offered and Smith refused his check; that his purpose in going to Smith's office on October 2 was again to tender the the premium and receive the policy; and that "I did go to Mr. Smith before the accident to tell him it was all right verbally." But, in any event, in our opinion the evidence would not support a finding that Dr. Pond accepted the rate at any time prior to the afternoon of October 2. [2, 3] It is well settled that the findings of the commission upon questions of fact are conclusive where there is any substantial evidence to support the award. Western Indemnity Co. v. Pillsbury et al., 172 Cal. 807, 159 Pac. 721; Mass. B. & I. Co. v. | Industrial Accident Commission, 176 Cal. 488, 168 Pac. 1050. Upon the question of fact we have been discussing, however, taking into account all the pertinent evidence bearing on the point, the apparently consistent and convincing testimony of Smith— supported as it is by the correspondence and the sequence and import of events concerning which there is no dispute, the uncertain testimony of Dr. Poud in most particulars-especially in respect to the time when he acted upon the letter of September 29, and the lack of clearness and definiteness in the findings on the conflict in the evi is really involved in conflict as to the time of his acceptance, we are constrained to declare that, even if the findings are to be interpreted as meaning that Dr. Pond had accepted the counter offer prior to the accident, they are, nevertheless, without support in the evidence. We are not prepared to say, however, that if Dr. Pond had, with some regard for certainty and precision, fixed his acceptance as of a time prior to the casualty we would set aside the finding. We do not think that his testimony can be said to contradict that of his own witness, Smith, on the point that it was sufficiently definite to raise a conflict, or, if there was a conflict, that the findings in any true sense resolved it. [4] Having reached the conclusion that a contract was not concluded prior to the injury, we shall now dispose of petitioner's objection to the finding that Smith was the agent of the company in the transaction. It is claimed in the brief of petitioner that "Smith had not been given, and did not have, and never attempted to exercise any power or authority over the policies of the company, except to receive and deliver the same, and at no time did he have or claim that he had the right to fix the rate or to execute, issue, sign, countersign, or modify a policy issued by this company. * Smith testified that he was the agent of petitioner, and not of Dr. Pond. If this be true it might be held that if Dr. Pond |