Case v. Meany

165 Wis. 143 | Wis. | 1917

Eschweiler, J.

The part of sec. 1919/, Stats., which is material for consideration on this appeal is as follows:

“Any company or person who shall solicit or place insurance in a fire insurance company not authorized to do business in this state shall, in the event of the failure of such unauthorized company to pay any claim or loss within the policy issued, be liable to the insured for the amount thereof to the extent that such company would have been liable.”

It is argued that in order to sustain liability under this law an insurance agent must be found to have both solicited and placed the insurance with such unauthorized company, and that where the evidence discloses that he did not solicit the insured to give the insurance, but merely placed such insurance "at the request of the insured, the terms of the statute fixing liability have not been met. In other words, that the phrase “solicit or place insurance” must be read “solicit and place insurance.”

We are satisfied, however, that the statute is aimed to protect those who have had their insurance placed with an unauthorized company and who thereby suffer damage through nonpayment of the fire loss. It was the act of the defendant to give this insurance to a company which did not comply with the requirements of the Wisconsin statutes regulating insurance companies, instead of placing it with some authorized company or refusing to place it at all, thereby avoiding this penalty.

It is further urged that the plaintiff was not the sole and unconditional owner of the premises in question. The record chain of title is not clear and satisfactory, hut sufficient does appear to support the finding of the court that plaintiff was the hblder by mesne conveyance of a land contract which would entitle him, on payment of $1,200, to an absolute conveyance of the same. He paid the accruing interest and nothing had been done to forfeit or lessen his rights. He was therefore in such a position that the proceeds from the policy would have belonged to him. Johannes v. Standard Fire Office, 70 Wis. 196, 35 N. W. 298; Evans v. Crawford Co. F. Mut. F. Ins. Co. 130 Wis. 189, 193, 109 N. W. 952.

The court below was satisfied, and there is ample evidence to sustain it, that there was no concealment or misrepresentations by plaintiff at the time of the issuing of the policy as to any facts about the title. The policy could not, therefore, have been avoided by the insurance .company. Vankirk v. Citizens' Ins. Co. 19 Wis. 621, 48 N. W. 798; Kludt v. German Mut. F. Ins. Co. 152 Wis. 637, 644, 140 N. W. 321.

By the Gourt. — The judgment of the circuit court is affirmed.

Rosenberry, 'J., took no part.