120 Wis. 590 | Wis. | 1904
The first question presented upon the pleadings ..and admitted facts is whether appellant is the owner of the claim covered by the policy. It appears from the foregoing statement of facts that the acts of the parties to the assignment are not questioned. The assignment is in terms a transfer, for a valuable consideration, of all the assured’s interest in and to the policy, and clearly indicates an intention to pass all the assured’s interest in and arising out of it. Under these circumstances the right of appellant to the proceeds of the policy cannot be questioned as between him and the assignor. Skobis v. Ferge, 102 Wis. 122, 78 N. W. 426 ; Jones v. Mayor, etc., 90 N. Y. 387; Schilling v. Mullen, 55 Minn. 122, 56 N. W. 586. The fact that no fund is shown to have been in the hands of the company as due on the policy, or then enforceable by action, cannot stand in the way of an equitable transfer of the proceeds of the policy, if the claim is thereafter definitely established under the facts and circumstances as they existed when the assignment was made. Chapman v. Plummer, 36 Wis. 262, and cases cited. The assured relinquished all rights in and under the
It is shown that appellant gave notice of the assignment to him by exhibiting on June 20 th the written assignment, indorsed on the policy, to Ered Kaemmerer, the secretary of the company; and that he gave verbal notice to Otto Schuster, the treasurer of the company, on the following day, and on the succeeding 27 th of June caused his attorney to notify the treasurer, in writing, of the assignment, and demanded payment of the sum due or to become due under the policy, and in default of payment gave notice that an action would be brought to enforce the claim. It is asserted, however, that the company is liable to appellant, as such assignee, for no more than the balance after deducting the amount paid by it to the justice in the garnishment action. Respondent was summoned as garnishee in the action in justice court against George M. Pulsipher, the assured, on the 21st day of June, 1901. It appeared by Otto Schuster, the treasurer, who made answer for it on July 1, 1901, touching its liability as such garnishee. It answered, admitting the loss resulting from the burning of Pulsipher’s barn, that the same had been duly adjusted at the sum of $175, and that this sum was owing to George M. Pulsipher and due him about September 2d, following. In its answer as garnishee it wholly omitted to state or bring to the attention of the court the fact that such claim under the policy had theretofore been duly assigned to appellant, nor did it tender him the defense in the garnishment action. The facts clearly establish that respondent had been fully informed and notified of the assignment of the claim to appellant when it was served, and before it answered in the garnishment action. It is also without dispute that appellant was no party to and in no way appeared in this action. Under these circumstances there is no basis for holding that the judgment in
It is urged in respondent’s bebalf that it is relieved from paying any sum it paid into court under the order of the justice as.such garnishee upon the debt of George M. Pul-sipher, the original owner of the policy. This contention cannot prevail, since respondent wholly omitted to take the proper and necessary steps in that action to'so protect itself. It had full knowledge of the owner’s assignment of the policy and its proceeds to appellant, and his interest therein, before it answered in the garnishment action. This information cast upon it the duty of bringing it to the attention of the court by setting up this matter as a defense to the action. In John R. Davis L. Co. v. First Nat. Bank, 84 Wis. 1, 54 N. W. 108, this court held:
"Our statutes seem certainly to contemplate that the garnish ee shall set forth in his answer any claim which third persons, to his knowledge, may have upon the property in his hands (S. & B. Ann. Stats, secs. 3721-3723&; Id. sec. 2760, subd. 5) ; the policy being apparently to bring all the conflicting claims as well as the parties making such claims before the court in order that all questions as to the ownership of the specific property in question may be settled in one proceeding. . . . Fairness and good faith require that when the garnishee knows of an assignment and transfer of property in his hands he should disclose the fact in his answer.” Adams v. Filer, supra; Coleman v. Scott, supra; Pierce v. C. & N. W. R. Co. 36 Wis. 283; Wilson v. Groelle, 83 Wis. 530, 53 N. W. 900.
The rights of the attaching creditor in the garnishment action could be no greater than the rights of the defendant (George M. Pulsipher) to- the property in the possession of or debts due or to become due from the garnishee. It follows that there was nothing due or to become due from respondent to George M. Pulsipher at the time of the commencement
Eespondent’s counsel asserts that appellant’s attorney appeared in the garnishment action, and set up appellant’s claim, and that appellant’s right to this money must have been litigated.upon the trial-of that action. This, however, is disputed, and the record does not sustain the contention. We find nothing in the record to show that appellant appeared in the case by attorney or in his proper person. The record of the trial as returned by the justice contains nothing tending to show this fact, but discloses that appellant was no party to the action, and in no way appeared therein.
The question remains whether this action is barred by the limitation expressed in the policy providing:
“Any suit or action, for the recovery of any claim by virtue of this policy, shall not be sustained-in any court . . . unless such suit or action be commenced within twelve months after the loss occurred.”
This condition in policies has been considered by the courts, and it is held may, like others inserted for the protection and benefit of the insurer, be waived. When the conduct and statements of those authorized to act for the company is such that a reasonably prudent man would anticipate that a claim will be paid, and that it will not be resisted under any condition of the policy, then the company will be estopped from claiming the benefit thereof. This is upon the equitable principle, enforced by the courts, that, if the company through those who are authorized to speak for it, either by words or conduct, has induced the assured to refrain from doing that which he otherwise would probably have done, in view of the conditions of the policy, then it will be estopped from asserting the forfeiture it has so induced, to the prejudice of the assured, who has given faith to such statements or reasonable inferences from such con
’ By the Gowt. — Judgment reversed, and the cause is remanded, with directions that the court award judgment to appellant for the sum of $175, with interest and costs.
