Under 85 O.S. 1951 § 11[ 85-11], as amended in 1953 and 1955, it is the duty of the State Industrial Commission to determine which insurer of which employer is liable, and if the independent contractor is not insured and has not otherwise complied with the coverage provisions of the Workmen's Compensation Act the State Industrial Commission must fix the liability as therein provided. The next question presented is whether the evidence supports a finding that the Traders and General Insurance Company was liable under an oral contract. We have held a policy writing agency has authority to bind the principal by an oral contract. Massachusetts Bonding Ins. Co. v. Vance, 74 Okla. 261, 180 P. 693, 15 A.L.R. 981; Metropolitan Casualty Ins. Co. v. Heard, 178 Okla. 461, 63 P.2d 720; United States Fire Ins. Co. of New York v. Rayburn, 183 Okla. 271, 81 P.2d 313. See, also, Annotations, 69 A.L.R. 559, and 92 A.L.R. 232.

It is settled law in this jurisdiction that the hazard of loss can be assumed by an insurance company prior to the execution by it of a policy. Metropolitan Casualty Insurance Co. of New York v. Heard et al., 178 Okla. 461, 63 P.2d 720; DeNoya v. Fidelity Phoenix Ins. Co., 110 Okla. 235, 237 P. 125; McCracken v. Travelers Insurance Co., 57 Okla. 284, 156 P. 640. The binding agreement to insure may, as stated in the above-cited cases, rest entirely in parol; however, in the case at bar a formal application for insurance was prepared by the plaintiffs and presented to the insurance company.

The Oklahoma decisions on the statute indicate to us that it was not intended to create a new liability, but only to codify existing common law principles in contract and agency that one may not accept the benefits of a contract or of an unauthorized agent's acts and then repudiate the contract or the agency. See e.g., Livingston v. Blair, 104 Okla. 238, 231 P. 82; Sherbondy v. Tulsa Boiler Machinery Co., 99 Okla. 214, 226 P. 564; Metropolitan Casualty Ins. Co. of New York v. Heard, 178 Okla. 461, 63 P.2d 720. As to the application in an agency situation see Berry v. Stevens, 168 Okla. 124, 31 P.2d 950; and D.W.L., Inc. v. Goodner-Van Engineering Co., Okla., 373 P.2d 38. If Mitchell is to prevail upon a re-trial of this case, he must do so on a quasi-contractual theory of debt separate and apart from the promissory note signed only by Fred Ballou.

Therefore, unless the insurance agent specifically called the insured's attention to the fact that he was not to receive the full protection usually accorded by such policies, that is, unless the agent made it clear that he was selling a policy specifically limited and reduced in coverage by the exclusion endorsement, the insured was entitled to a standard policy without such limitation therein. See, also, Metropolitan Casualty Ins. Co. v. Heard, 178 Okla. 461, 63 P.2d 720. As above mentioned, the insurance agent testified that he had no authority to write this policy without attaching the exclusion endorsement, but the Oklahoma Supreme Court held in Westchester Fire Ins. Co. v. Federal Nat. Bank, 135 Okla. 47, 273 P. 889, that a policy-writing agent had power to waive conditions in the policy.

The company's answer, as previously indicated, admitted that A.B. Chapman and Paul N. Carris were its "policy writing agents" and it has long been the law in Oklahoma that where a fire insurance company appoints a policy writing agent for the company, that agent may bind the company by oral contracts of insurance and the liability of the company attaches under such an oral contract without the insurance and delivery of a policy. McCracken, Guardian, v. Travelers' Ins. Co. of Hartford, Conn., 57 Okla. 284, 156 P. 640; Massachusetts Bonding Ins. Co. v. Vance, 74 Okla. 261, 180 P. 693, 15 A.L.R. 981; DeNoya v. Fidelity Phoenix Ins. Co., 110 Okla. 235, 237 P. 125; Commercial Casualty Ins. Co. v. Connellee, 156 Okla. 170, 9 P.2d 952; Metropolitan Casualty Ins. Co. of New York v. Heard et al., 178 Okla. 461, 63 P.2d 720; United States Fire Ins. Co. of New York et al. v. Rayburn, 183 Okla. 271, 81 P.2d 313; and Federated Mutual Implement Hardware Insurance Company v. Fairfax Equipment Company, Inc., 10 Cir., 261 F.2d 207. The cited cases relied upon by the company as authority for its first proposition are all actions predicated upon the relationship of master and servant, where the master's liability, if any, is based solely upon the negligent acts of the servant under the rule of respondeat superior.

Connecticut Fire Ins. Co. et al. v. Fields (Tex.Civ.App.) 236 S.W. 790. To the same effect are: Kearney County Farmers' Mut. Ins. Co. v. Howard, 128 Neb. 179, 258 N.W. 272; Travelers Ins. Co. v. Taliaferro, 176 Okla. 242, 54 P.2d 1069; Southern Casualty Co. v. Hughes, supra; Perez v. Fort Worth Mut. Benevolent Ass'n (Tex.Civ.App.) 291 S.W. 574; Security Ins. Co. v. Cameron, 85 Okla. 171, 205 P. 151, 27 A.L.R. 444; Metropolitan Casualty Ins. Co. v. Heard et al., 178 Okla. 461, 63 P.2d 720; Clark v. National Aid Life Ins. Ass'n, 177 Okla. 137, 57 P.2d 832; Murphy v. Great American Ins. Co., 221 Mo. App. 727, 285 S.W. 772; Pickett v. Equitable Life Assurance Society (Mo.App.) 27 S.W.2d 452; United Burial Ins. Co. v. Collier, 24 Ala. App. 546, 139 So. 104. The fact that plaintiff contended in the district court and in this court that the contract of insurance became effective when the application and initial payment was received by the Albuquerque office, while we have held that it became effective as of that date when approved by the Albuquerque office, is immaterial. It does not change the theory of the case in a material way.