174 Wis. 422 | Wis. | 1921
The claim that the policies were void because of false swearing as to ownership of goods was disposed of adversely to the defendants by the trial court because the evidence did not sustain it. There was some testimony to the effect that plaintiff had told the state fire marshal who had investigated the case that he and Volk were partners. The trial court properly found such statement was not made. Even if it had been it could not have affected the validity of the policies, because the undisputed proof showed that plaintiff was the sole owner subject to the chattel mortgage.
The trial court correctly held that the return of the policies to Johnson and their redelivery to plaintiff, who paid the premium, with the companies’ consent in writing to their assignment to him with knowledge by the agents of all the material facts affecting the insurance, was equivalent
The agent Pitt, at the time he issued the policy, knew there was to be concurrent insurance on the insured property. Having such knowledge, the issuance of the policy was equivalent to a consent to concurrent insurance by the company. Welch v. Fire Asso. 120 Wis. 456, 98 N. W. 227. It was there held that
“If, when the agent of an insurance company delivers a policy of insurance, he has knowledge of the facts as regards the subject of the insurance inconsistent with the terms of the policy, the assurer, by accepting the premium, is estopped from declaring the policy void because the terms thereof were not so changed in writing as to conform to the facts.”
The same principle applies to the chattel mortgage. Both agents knew that the goods were mortgaged when the policies were assigned to plaintiff. Knowledge on their part was knowledge on the part of the defendants. Stilp v. New York L. Ins. Co. 168 Wis. 264, 169 N. W. 606. This, however, the defendants deny, claiming that the judicial rule of the state as declared in the'Welch Case was changed by the adoption of ch. 127, Laws 1917, in force when the policies were written, which leaves out of the standard form of insurance policy the clause that knowledge of the agent is knowledge of the company. A judicial rule of long standing and founded upon just and equitable principles is not abrogated by an omission in a prescribed form of policy. Its inclusion therein was merely declaratory of the law as it existed arid added nothing to the effect or value of the policy. Its exclusion, therefore, took nothing from the law or the effect of the policy. The judicial rule remained unchanged by the legislative action.
By the Court. — Judgment affirmed.
