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validity.

lation, but deprives a party of the ordinance which confines the builduse of his property without regard ing area to 25 per cent of the lot is to the public good, under the pretense so restrictive that

-denial of perof the preservation of health, when it is an unreason- mit for churchit is manifest that such is not the ob- able exercise of the ject and purpose of the regulation, power granted by the legislature, will be set aside as a clear and direct and for that reason that part of the infringement of the right of prop- ordinance must be held to be invalid. erty without any compensating ad- The objection of the city engineer vantages."

having been based solely on the reChicago, B. & Q. R. Co. v. Illinois, quirement of that part of an ordi200 U. S. 561, 50 L. ed. 596, 26 Sup. nance which we hold to be invalid, Ct. Rep. 341, 4 Ann. Cas. 1175, is it follows that the judgment of the cited by relator. Mr. Justice Har- District Court must be, and it herelan wrote the opinion for the court. by is, in all things, affirmed. At page 592 of 200 U. S., this is said: “And the validity of a police

Rose, J., dissenting: regulation, whether established di- The ordinance prohibiting the rectly by the state or by some pub- owner of a lot from covering more lic body acting under its sanction, than one fourth of it with buildings must depend upon the circumstances in a residential district had its oriof each case and the character of the gin in an exalted conception of civic regulation, whether arbitrary or life. The goal of the city council reasonable, and whether really de- was public improvement, leading to signed to accomplish a legitimate better, healthier, more comfortable public purpose. Private property

and happier conditions. The rich cannot be taken without compensa- were not to have a monopoly of tion for public use under a police beautiful surroundings, with their regulation relating strictly to the wholesome effect on health, moralpublic health, the public morals, or ity, and usefulness. By means of the the public safety, any more than un- ordinance condemned the city counder a police regulation having no re- cil meant to touch the pulse of mulation to such matters, but only to nicipal power for the general welthe general welfare. The founda- fare. Parents and children of all tions upon which the power rests classes, without regard to former are in every case the same. This environments, were to breathe pure power, as said in Carthage v. Fred- air, at least in the streets, and see erick, 122 N. Y. 268, 10 L.R.A. 178, flowering shrubs around private 19 Am. St. Rep. 490, 25 N. E. 480, dwellings, and listen to the fluted has always been exercised by mu

notes of birds in hedges. To some nicipal corporations by making extent these privileges are already regulations to preserve order, to enjoyed in public parks. The espromote freedom of communica- thetic features of municipal activity tion, and to facilitate the transac- for the good of the public ought to tion of business in crowded commu- be recognized and respected. Innities.'

dividual rights and private property See Haller Sign Works v. Physi- must be protected, but they are not cal Culture Training School, 34 gods of government. Ownership L.R.A.(N.S.) 998 and note (249 Ill.

and control of lots among urban 436, 94 N. E. 920); Re Opinion of homes are limited by the proper exJustices, 234 Mass. 597, 127 N. E. ercise of police power for the gen525.

eral welfare. Private rights are It clearly appears to us that the menaced when the good of society is

ordinance goes be- neglected. When courts interfere -extent of statu- yond the scope of with municipal legislation to im

authority conferred prove conditions generally, they by the legislature. That part of the should point out a limitation of pow

tory authority.

(108 Neb. 859, 189 N. W. 617.) er fixed by the supreme law, and find the regulatory power of the city to facts showing an unmistakable usur- enact laws for the public good is pation. In my opinion the reason- considered with the individual rights ing and conclusion of the majority of relator, the ordinance does not do not meet the proper tests. When seem to me to be unreasonable.

ANNOTATION.

Validity of regulations as to relative area of parcel that may be covered by

building.

v.

In 9 A.L.R. at page 1040, the Md. 202, L.R.A.1917A, 1216, 98 Atl. validity of a building regulation re- 547, the regulation provided that quiring an area or open space for no dwelling house shall be erected light and air is exhaustively dis- within" certain "building lines cussed. A closely related question,

unless the same is constructed that of the constitutionality of a as a separate and unattached buildcity or town planning statute or or- ing; and if such dwellings are of dinance, including the constitution- frame construction they shall be at ality of building-line statutes, is least 20 feet apart, and if of stone or treated in 12 A.L.R. 679. The pres- brick construction they shall be at ent annotation is confined to the va- least 10 feet apart.” It appeared lidity of a statute or ordinance de-. that the Maryland Realty Company, signed to prevent the construction a body corporate, owned a lot in fee, of a building covering more than a for which it paid $15,000, lying withspecified percentage of the area of in the limits described in the act. the lot or parcel.

The lot had a frontage of 259 feet The reported case (STATE EX REL. and an average depth of from 100 feet WESTMINSTER PRESBY. CHURCH to 167 feet and 3 inches to a 10-foot EDGCOMB, ante, 437) holds that a alley. The appellee desired to imstatute empowering cities of a cer- prove its lot by the erection thereon tain class to impose regulations "de- of semidetached, two-story, slag-roof, signed to secure the safety from fire brick dwellings; and, after securing a and other dangers, and to promote permit from the appeal tax court, it the public health and welfare, in- filed with the inspector of buildings cluding, so far as conditions may per- of Baltimore city plans and specifimit, provisions for adequate light, cations showing the character of air, and convenience of access,” does buildings it proposed to erect, subject not permit a city of the class men- to the supervision of the building tioned to impose unreasonable regu- inspector, and in conformity with the lations on the owners of real property building laws of Baltimore city. The with respect to the proportion of the inspector of buildings refused to isarea thereof that they may cover sue a permit for the erection of the by a proposed building. The court proposed buildings. The appellee says that the part of an ordinance thereupon filed a petition for manconfining the building area to 25 per damus to compel the issuing of the cent of the lot is so restrictive that , permit for the erection of the buildit is an unreasonable exercise of the ings shown on the plans and specifipower granted to it by the legisla- cations filed with him. The regulature.

tion was held to be unconstitutionOne other case has passed on the al, the court saying: “The character validity of a regulation designed to of houses which the appellee is prevent the construction of a build- asking to build upon his property ing covering more than certain is described by the witnesses as two-, area of the lot. In that case, Byrne story brick semidetached houses with v. Maryland Realty Co. (1916) 129 front and rear porches, bay windows

a

we

on

on the front, heated by steam, and to state, and

have found no cost about $2,500 each to build. It American case to support it. So far is stated that they would have orna- as fire risk is concerned, the facts mental fronts and would make at- show that the proposed houses would tractive houses, thoroughly modern be less dangerous than the frame and up to date, and would have a cottages in the neighborhood. Garten years' guaranteed slag roof, and rison avenue and the character of that they would be equal to, if not the improvements along that avenue better than, the same character of from Walbrook junction are fairly houses already erected in the neigh- accurately described in the resoluborhood. The houses would be tion of the Forest Park Improvesemidetached, that is, would be ment Association. It is fine built in pairs, with a distance of 8 avenue, and the houses fronting on feet between each pair of houses, and it are attractive and beautiful, and would front Garrison avenue. there can be no doubt that a majority The record shows that, because of of the residents there are opposed to the class of buildings surrounding the building of these proposed the lot and in close proximity thereto houses. It would appear, however, on the south, west, and north, the that the extent of depreciation to only businesslike method of improv- property on the avenue has been very ing the lot is by the class of im- much exaggerated. It is doubtful if provements proposed, and that it

the proposed construction would would be financial suicide to erect have any appreciably injurious effect cottages on the lot with a view of

upon the property on either side of selling them. There was some sug- the avenue, lying between Walbrook gestion in the testimony that houses junction and Clayton road. It would such as it is proposed to erect upon undoubtedly be objectionable to some this lot would be a menace to the residents in close proximity to it, public health, and, therefore, their and it would undoubtedly depreciate erection might be prohibited under to some extent the value of some the police power for these reasons. property. But this court has no But there is no substantial support power, under the plain and settled for this contention on the facts. rules of law, to prevent the conThere is nothing inherently dan- struction of the houses. The legisgerous to the public safety or the lature has no power to pass the act. public health in properly constructed The act does not relate to the police semidetached brick houses, and to power, and its enforcement would prohibit their construction upon deprive the appellee of property this ground would be carrying the rights guaranteed by the Constitupolice power to an extent that would tion, which cannot be invaded for alarm the public. There is no au- purely esthetic purposes under the thority for such a proposition in this guise of police power." A. S. M.

SECURITY INSURANCE COMPANY OF NEW HAVEN, CONNEOTI

CUT, Piff. in Err.,

V.
O. F. CAMERON et al.

[blocks in formation]

(85 Okla. 171, 205 Pac. 151.) Insurance – delay in issuing policy — liability.

1. An insurance company may be held liable in damages to an applicant (85 Okla. 171, 205 Pac. 151.) for insurance where there has been unreasonable delay in perfecting and forwarding an application to the company for acceptance or rejection, by the soliciting agent of the company or other agent who has authority to supervise the solicitation and preparation of applications, and the question of the unreasonableness of the delay is one for the trier of the facts in each particular case, under proper instruction of the court.

[See note on this question beginning on page 463.] - power of agent.

acts, wrongs, and neglect of the agent 2. Agents representing insurance are the acts, wrongs, and neglect of companies in soliciting insurance can the company, and the insurance combind the company with regard to mat- pany cannot limit their responsibility ters within the limited and restricted for the acts of said agents and avoid scope of their authority; that is to the relation of principal by placing say, matters pertaining to the taking provisions in applications and conand preparation of applications for tracts of insurance limiting their liainsurance for submission to the com- bility, and responsibility, or disavowpany; and an insurance company is ing said acts, and this is so since all chargeable with the negligence of such provisions are declared void by such agent in failing, for an unrea- statute. sonable length of time, to forward an

Appeal affirmance on facts. application of insurance for accept- 5. Under the facts in this case, ance or rejection to the company.

where a soliciting agent procured an [See 14 R. C. L. 871, 896; 3 R. C. L.

application for insurance from the Supp. 305, 310.]

applicants, with a note covering the - liability of insurers.

premium, the agent being duly au3. Insurance companies are held, in thorized thereunto by the company, law, to a broader legal responsibility but failed to get the proper due date than are parties to purely private

fixed in the note, and failed to put in contraéts or transactions. This is

the note the amount required by the based upon the fact that those com

company for deferred payment of the panies act under franchise from the premium, and immediately after destate, and the policy of the state in livery of said note and application the granting such franchises proceeds up- general agent discovered the mistakes on the theory that it is in the interest

in drawing the note, and the soliciting of the public, to the end that indem

agent notified the applicants, and the nity upon specific contingencies applicants instructed the soliciting should be provided those who are agent to make the required alteraeligible and desire it, and for their tions in the note, and the agents of protection the state regulates, in- the company retained said note and spects, and supervises their business. application without making further An insurance company having solic- demands upon the applicants, and ited and obtained applications for in- failed to make the alterations in said surance, and having received payment note and application as directed, and of the fees or premiums exacted, they failed to forward the same to the comare bound either to furnish the in- pany at the place designated, and a demnity the state has authorized them loss is sustained by the applicants of to furnish, or decline so to do within their property sought to be insured, such reasonable time as will enable

and there being no contention that them to act intelligently and advised- there was not a reasonable time to ly thereon, or suffer the consequences have gotten the application to the flowing from their neglect so to do. company before the loss was sus[See 14 R. C. L. 896.)

tained, or reasonable time in which - soliciting agent as agent of com

to inspect said risk, or that said risk pany.

was one that the company would not 4. A soliciting agent of an insur

insure, and while this state of facts ance company, in all matters pertain

is not sufficient to constitute in a ing to the taking of applications for

technical sense an express or implied insurance, is the agent of the com

contract of insurance, yet it is suffipany, and not of the insured, and the

cient to constitute a breach of legal

duty and actionable neglect for which Headnotes by ELTING, J.

the company is liable to the applicant for whatever damage he reasonably awarding damages upon such a state suffered as the proximate result there- of facts, will not be disturbed upon of, and the action of the trial court, appeal.

ERROR to the District Court for Grant County (Bowles, J.) to review a judgment in favor of plaintiffs in an action brought to recover da mages for failure of defendant's agent promptly to secure them a contract of insurance. Affirmed.

The facts are stated in the opinion of the court.

Messrs. H. 0. Glasser and W. J. in said petition the defendant comOtjen for plaintiff in error.

pany was a corporation, with its Messrs. Simons & McKnight, for de- principal office and place of business fendants in error:

at New Haven, Connecticut, and that U. G. Parker, as a soliciting agent of the defendant insurance company,

said company maintained a western

branch of its business with headwas, in all matters and things connected with the taking of said appli

quarters at Rockford, Illinois, and cation and the making out of the

that said company was a corporanote and application, the agent of the tion engaged in the business of indefendant, and not of the plaintiffs. suring property against fire and

Liverpool & L. & G. Ins. Co. v. Mc- other hazards; that plaintiffs were Laughlin, — Okla. - 174 Pac. 248.

.

residents of the state of Oklahoma. Defendant was liable to plaintiffs

That on or about June 5, 1917, the for failure of its agent to procure the

plaintiffs were the owners of a sepinsurance. Boyer v. State Farmers' Mut. Hail

arator, feeder, stacker, weigher, Ins. Co. 86 Kan. 442, 40 L.R.A.(N.S.)

and main belt, which machinery was 164, 121 Pac. 329, Ann. Cas. 1915A,

new and had just been purchased 671; Priester v. Missouri State L. Ins. by plaintiffs. That at said time W. Co. 85 Kan. 97, 116 Pac. 245; Phipps J. Otjen, of Enid, Oklahoma, was the v. Union Mut. Ins. Co. 50 Okla. 135, general agent of defendant company 150 Pac. 1083; State Mut. Ins. Co. v. in the state of Oklahoma, with ofGreen, 62 Okla. 214, L.R.A.1917F, 663,

fice at the city of Enid, Garfield 166 Pac. 105; W. B. Goode & Co. v.

county, and that U. G. Parker, of Georgia Home Ins. Co. 92 Va. 392, 30

Wichita, Kansas, was the duly auL.R.A. 842, 53 Am. St. Rep. 817, 23 S. E. 744; Northwestern Mut. L. Ins.

thorized and acting agent of the deCo. v. Neafus, 145 Ky. 563, 36 L.R.A.

fendant company for the purpose of (N:S.) 1211, 140 S. W. 1026; Sullivan soliciting and receiving applications v. Phenix Ins. Co. 34 Kan. 174, 8 Pac. for insurance for said company. 112.

That on the 5th day of June, 1917, Elting, J., delivered the opinion of U. G. Parker, soliciting agent, solicthe court:

ited these plaintiffs to insure the This suit was commenced in the above-described threshing machindistrict court of Grant county, Okla- ery and equipment in the said comhoma, by 0. F. Cameron and Lewis

pany, and which machinery had just Rion, plaintiff's below, defendants in been purchased by the plaintiffs, but error herein, against the Security had not yet been delivered to them. Insurance Company of New Haven, That the plaintiffs at such time Connecticut, defendant below, plain- agreed with U. G. Parker, as such tiff in error herein, by filing a peti- soliciting agent for said company, to tion on the 30th day of November, insure said property with said com1917.

pany as soon as the property had The defendant below entered its been received, and, in pursuance of appearance by and through its at- said agreement, the said U. G. Parktorney, George W. Buckner.

In

er filled out a written and printed said petition the plaintiffs alleged in application, addressed to said insursubstance the following:

ance company, for insurance on the That at all times referred to above-described threshing machin

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