The appellant, hereafter the Insurer, appeals from a declaratory judgment of the District Court of Montana in a diversity suit holding valid a predated policy of insurance issued by it, insuring Leo Tacke against his liability for personal injury not exceeding $10,000 and property damage not exceeding $5,000. The judgment v/as solely as to the validity of the policy.

There was a collision between Tacke’s Chevrolet and a car containing a Mr. and Mrs. Kissee in which Mrs. Kissee claimed she was injured and for which she brought suit which is pending and not yet tried. Insurer claimed the predated policy was invalid and denied any liability under it for damages recoverable from Tacke by Mrs. Kissee as a result of the collision, thus making an “actual controversy” for the declaratory relief under 28 U.S.C. § 2201 .

The collision in which Tacke was involved occurred at about 8:30 or 8:40 a. m. on September 20, 1952. He was unconscious for some time thereafter. There had been prior discussions with Insurer’s agent for an auto liability policy but the terms were not fixed until 9 a. m. that day when a verbal agreement with the Insurer’s agent was made over the telephone by Mrs. Tacke acting as agent of her husband for insurance coverage pre-dated to 12:01 a. m., September 20, 1952. The making of the agreement at that time is admitted in Insurer’s statement of points on appeal. The policy for a year from its predate was mailed to Mrs. Tacke that afternoon.

She testified and it is uncontradicted that she did not know of the collision at the time this telephone call was made. This was corroborated by the testimony of a disinterested witness, Mrs. Dusek, who telephoned Mrs. Tacke between 9:00 and 9:30 a. m. and was the first to advise her of the collision. In the course of the conversation Mrs. Tacke said, “Thank God I renewed our insurance this morning.”

That a predated agreement creates a liability for an injury existing at the time it is entered into is a matter of settled insurance law. Appleman On Insurance Law, § 2291. In such a case the Supreme Court in United States v. Patryas, 303 U.S. 341 , at page 345, 58 S.Ct. 551 , at page 554, 82 L.Ed. 883 in holding the United States liable in such a situation stated:

The District Court’s finding of fact 5 holding the policy valid is:

To which Insurer’s statement of his points on appeal is:

We do not agree that the above statement applies when the insured’s agent has no such knowledge. The knowledge of the unconscious Tacke is not imputable to his agent, Mrs. Tacke. The situation here is controlled by the Restatement of the Law of Agency, § 256, comment c:

The Restatement is supported by the following cases: Pendergast v. Globe & Rutgers Fire Ins. Co., 1927, 246 N.Y. 396 , 159 N.E. 183 ; McLanahan v. Universal Insurance Co., 1828, 1 Pet. 170 , 26 U.S. 170 , 7 L.Ed. 98 ; and by analogy in El Dia Ins. Co. v. Sinclair, 2 Cir., 1915, 228 F. 833, 840 ; George A. Moore & Co. v. Eagle Star & British Dominions Ins. Co., D.C.N.D.Cal.1925, 5 F.2d 358 ; Cornfoot v. Fowke, 6 M. & W. 358 (151 Eng.Rept. 450).

The judgment is affirmed.

. The policy was later cancelled effective December 21, 1952. . Similar are Ostroff v. Springfield Fire & Marine Ins. Co., 172 Pa.Super. 211 , 92 A.2d 899 ; Continental Cas. Co. v. Industrial Comm., 61 Utah 16 , 210 P. 127 ; Orto v. Poggioni, 245 App.Div. 782 , 281 N.Y.S. 16 .