Federal Life Ins. Co. v. Lewis , 76 Okla. 142 ( 1919 )

The plaintiff in error, on petition for rehearing suggests that the court in the opinion should have passed upon the question of the authority of the agent Wood, and not upon the question of whether Wood was the agent, for the reason that the company did not deny that Wood was the agent, but denied his authority. The petition alleges that Wood was the agent, with full power and authority to act. The company in its answer admits he was agent, but denies his authority, but the denial was not verified. The rule adopted by this court as to verification of an answer, in denying either the appointment or authority of the agent, is the same, the court holding that, in order to deny the appointment or authority of the agent, the answer must be verified; otherwise the allegations of agency or authority as alleged in the petition will be taken as true. This court, in the case of Chicago, Rock Island Pacific Ry. Co. v. E.F. Mitchell, 19 Okla. 579, 101 P. 850, held in substance:

Where the allegations of the petition set up the authority of the agent, and the defendant denies this authority, and the answer was sworn to by the attorney, but not in compliance with the statute, which provides what is necessary for the attorney to allege before he may verify a pleading, it does not bring the denial within the statute, and is not sufficient to raise the issue of authority. The fact that plaintiff may have introduced some evidence in the court below to prove authority, under the cases cited in the opinion, would not be prejudicial error.

The defendant introduced no evidence to show lack of authority; therefore the authority of the agent as alleged in the petition will be taken as true.

The petition for rehearing is therefore denied.

OWEN, C. J., and RAINEY, KANE, JOHNSON, PITCHFORD, and HIGGINS, JJ., concur.