Hankins v. Rockford Insurance Co., 70 Wis. 1

Hankins v. Rockford Insurance Co.

70 Wis. 1 | Wis. | 1887

Cassoday, J.

The mere fact that the mortgage to Pease, mentioned in the policy, had been paid and discharged, did not authorize the plaintiff to place another mortgage running to a different party upon the premises insure^, in violation of the conditions of the policy above mentioned. Such conditions in policies “ are to secure risks in which *4there shall be no motive for intentional or dishonest loss.” Redmon v. Phœnix F. Ins. Co. 51 Wis. 301. True, the mortgage here is small, but to hold that the plaintiff had the right to put it upon the premises in contravention of the agreement, without jeopardizing the risk, would be to establish a rule which would authorize a large mortgage with the same impunity.

The question was submitted to the jury whether the plaintiff procured the consent of the local agent to the placing of that mortgage upon the premises, with the instruction that, if he did, it “ would be a waiver of the company of this special clause in-the policy.” The jury necessarily found that the plaintiff did procure such consent, and hence that there was such waiver. It is urged that a local agent for an insurance company is an agent for such company for all purposes, under sec. 1971, R. S. Expressions may be found, when not limited by the facts of the particular case being considered, authorizing such an inference. Rut the authority of a decision is necessarily limited to the points decided. True, that section declares that “ whoever ” does one of the several things therein mentioned “ shall be held an agent of such corporation to all iptents and purposes; ” but such agency, after all, is limited to the act of the particular person in doing one or more of the things thus specifically designated. In that sense “ the word agent, whenever used ” in ch. 89, R. S., is to “ be construed to include all such persons.” Ibid. In other words, whenever an insurance company authorizes any person to do any one of the things thus specified, it cannot disclaim the agency of such person in the doing of anything necessarily implied in the specific act thus authorized. Thus it has been frequently held, by this and other courts, in effect, that where a person.was authorized by an insurance company to make a contract of insurance, he thereby had implied authority in doing so to waive stipulations as to the condition of the *5property, or other facts then existing; and it may be as to subsequent conditions, if such waiver is made at the time of effecting the insurance.

But those cases have no bearing upon the question here presented. This contract of insurance was completed in all its terms, and binding upon both parties, June 10, 1885. The plaintiff accepted it with all its conditions and limitations. In the absence of any fraud or mistake, he was, on general principles, conclusively presumed to know its contents. Herbst v. Lowe, 65 Wis. 321; Brown v. Mass. M. L. Ins. Co. 59 N. H. 298. Thus it appears that the policy was “ made and accepted ” by the plaintiff with knowledge in lawr of its contents, “ upon the above express conditions,” to the effect that no local agent, at least, “can in any manner waive either or any of the conditions of this policy.” With this policy in his possession, and more than nine months after the contract of insurance had been thus completed, the plaintiff, according to his testimony, requested the local agent to allow him permission, notwithstanding the conditions of the policy, to place the mortgage upon the premises, and claims that such agent answered: “It is all right; go ahead and make out the contract.” In other words, it is claimed that, notwithstanding the conditions and limitations in the policy, it wras nevertheless competent for the local agent, without the knowledge or consent of the defendant or any of its general officers, and without any consideration, and by mere words, to essentially change and modify the contract which had already been completed and binding upon the parties for more than nine months. Certainly, no such alteration of an existing contract, without the knowledge or consent of one of the parties to it, in any other business, would be permitted.

We must hold that where the assured has accepted a policy containing a clause prohibiting the waiver of any of its provisions by the local agent, he is bound by such inhibi*6tion, and that any subsequently attempted waiver, merely by virtue of such agency, is a nullity. This proposition seems to be supported by the weight as well as the logic of the adjudicated cases. Merserau v. Phoenix Mut. L. Ins. Co. 66 N. Y. 274; Marvin v. Universal L. Ins. Co. 85 N. Y. 278, 39 Am. Rep. 657; O'Reilly v. Corporation London Assurance, 101 N. Y. 575; Kyte v. Comm. Union Ass. Co. 144 Mass. 43; McIntyre v. Mich. State Ins. Co. 52 Mich. 188; Cleaver v. Traders' Ins. Co. 32 N. W. Rep. (Mich.), 660; Bowlin v. Hekla F. Ins. Co. 36 Minn. 433; Shuggart v. Lycoming F. Ins. Co. 55 Cal. 408; Enos v. Sun Ins. Co. 67 Cal. 621; Leonard v. American Ins. Co. 97 Ind. 299; Winnesheik Ins. Co. v. Holzgrafe, 58 Ill. 516; Universal M. F. Ins. Co. v. Weiss, 106 Pa. St. 20; Pottsville M. F. Ins. Co. v. M. S. Imp. Co. 100 Pa. St. 137. Some of these cases go much further in favor of the insurance company than the proposition stated. By citing them, we are not to be regarded as committing ourselves to anything extraneous to the question here involved and decided.

By the Oourt. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

See notes to this case in 35 N. W. Eep. 36, and 27 Am. L. Reg. 197.— Rep.