The opinion
DAVISON, J.
(dissenting). I cannot agree with the reasoning, nor with the conclusion reached in the opinion of the majority of the court, and desire to express my reasons therefor. It is my opinion that the rules of law therein stated are sound and are well established in this jurisdiction but that they are not applicable to the facts in the case at bar.
This appeal grows out of two actions in the lower court, one of which contains two causes of action, which were consolidated for trial. Since the facts determinative of all issues in the separate causes of action are identical, only one need be specifically referred to. The action is one for the recovery of the premium for one year upon a liability insurance policy computed upon the basis of a percentage of defendant’s pay roll as provided in said policy, less, however, the amount paid plaintiff by defendant at the time of the delivery of the policy. The total amount sought to be recovered is $683.98, being the difference between the computed premiums of $885.71 and the amount paid at time of delivery of $201.73.
The majority opinion is founded primarily upon the rule of law set out in *251 syllabus numbered 3 therein, to the effect that a written contract cannot be varied by parol evidence except in certain instances. But the application of that rule is in all instances absolutely dependent upon the freedom of terms of the written contract from doubt and ambiguity. The quotation from previous cases, which donstitutes the next to last paragraph of the majority opinion, first recognizes this requirement before stating the rule. The conclusion reached by the majority by the application of that rule presupposes the “written contract” to be the insurance policy standing alone and complete within its four corners and therefore free from doubt and ambiguity. But the record discloses that at the time of the delivery of the insurance policy, and as an integral part of the transaction and in payment of what he thought was the entire year’s premium, defendant gave plaintiff’s agent a check for $72.45, on the face of which was written:
“This check is in full settlement of account as shown hereon. Endorsement Constitutes Receipt in Full.
Policy No. FG 5916519
Pre. for One Year from
5 December 1945 _$72.45” This check was endorsed and paid.
Section 158 of Title 15 O.S. 1941 , provides:
“Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.”
On numerous occasions, this section has been presented to this court for interpretation. Its meaning is clearly explained in the following statement in the case of Mid-Continent Life Ins. Co. v. Goforth, 193 Okla. 314 , 143 P. 2d 154 :
“It is the general rule that instruments executed at the same time, and for the same purpose, and in the course of the same transaction, are, in the eye of the law, one instrument, and will be read and construed together, as if they were as much one in form as they are in substance. The principle is applicable to cases where negotiable instruments and a written agreement are executed at the same time by the same parties. The resulting contract is to be determined by a construction of both in accordance with conventional rules.
“We have held many times that where two instruments, though not executed at the same time, refer to the same subject matter and on their face show that each was executed to carry out the intent of the other, both should be construed as one contract.”
The agent of plaintiff, who accepted the check, was the one authorized to and who did take the application, deliver the policy and accept the payment of premiums. In the case of Maryland Casualty Co. v. Cowan, 185 Okla. 304 , 91 P. 2d 756 , it was held that the payment of premiums to the local agent although never received by his principal was payment to the insurance company. The Supreme Court of South Carolina, in the case of Galphin v. Pioneer Life Insurance Co., 157 S. C. 469, 154 S. E. 855 , held that:
“Insurer’s agent having authority to deliver life policy and collect premium possessed implied authority to vary mode and time of payment.”
It is my opinion that the local agent, having accepted the check with the provision that it was in payment of the premium in full and having delivered the policy at the same time, was acting within the scope of his authority. It is my further opinion that, under the provisions of the above-quoted statute, the written contract of the parties consisted of the insurance policy and the check, each of which bore the signature of both parties; that there was therefore an ambiguity in the contract which permitted the introduction of parol testimony for the determination of the intent of the parties and which became an issue of fact to be presented to the jury. The record indicates that defendant would not have taken out the policy had he thought that the premium would be more than he had paid.
If there was not a meeting of the minds of the parties, no contract was *252 entered into and defendant would probably be entitled to a return of the consideration paid, but that question is not before us. Nor are we called upon to determine any question regarding the rights of third parties entitled to benefits under the policy. Both parties present the case upon the theory that a contract was entered into, but defend their respective positions upon what the provisions of that contract were. Being a contract, then, wherein there was an ambiguity between the statement in the check and the statement in the policy as to what agreement was reached relative to the amount of premium to be paid, that became a question of fact to be determined by a jury. In the case of Mitchell v. Vogele, 125 Okla. 176 , 256 P. 906 , the rule is stated as follows:
“The determination of the meaning of a written contract is ordinarily a question of law for the court and not one of fact for the jury, but where there is a dispute between the parties to the contract as to what was intended by certain provisions in the contract and the contract is susceptible of more than one construction and this issue is properly raised by the pleadings, the construction of the contract then becomes a mixed question of law and fact, and parol testimony is admissible to show what the intentions of the parties were when they entered into the contract and is determinable by a jury under proper instructions of the court.”
In the case at bar, the verdict of the jury was for defendant.
There is some argument advanced in the briefs of the parties that the contract, if providing for the amount of premium contended for by defendant, is unlawful because it is violative of section 138, Title 36 O.S. 1941 . There is no testimony in the record tending to show the defendant guilty of fraud or inequitable conduct, and, under such circumstances, this court, in the case of National Fidelity Life Ins. Co. v. Gerard, 175 Okla. 219 , 52 P. 2d 1 , said:
“We think the cases cited by the company are not controlling in this case. Our statute does not provide that a policy issued in violation of the above statute shall be void, but it does make it a misdemeanor for any person to knowingly receive any valuable thing,, special favor, or advantage whatever ( 36 O.S. 1941 §196), and it makes a violation of any of the provisions of the article on insurance an offense punishable by fine ( 36 O.S. 1941 §20). There was no evidence introduced that tended to prove that the assured knew that the annuity payment was more than he was entitled to. The average citizen does not know how premium rates and payments to the beneficiary are arrived at. Those are matters that only a trained actuary can figure.”
See, also, Hayes v. Travelers Ins. Co., 93 F. 2d 568 .
For these reasons I conclude that the judgment of the trial court based upon the verdict of the jury should be affirmed. This is the same conclusion reached by the Supreme Court of Utah in a very similar case, Ashton Jenkins Ins. Co. v. Layton Sugar Co., 85 Utah 333 , 39 P. 2d 701 , wherein it was held that:
“Insurance broker, giving insured receipt in full upon payment of premium less than that designated in policy, could not subsequently recover difference between amount paid and designated amount ... on theory that statute prohibiting rebate of part of premium was violated.”
See, also, Waller-McCumber, Inc., v. Fields (Tex. Civ. App.) 137 S. W. 2d 126 .
I, therefore, respectfully dissent.