76 Wis. 269 | Wis. | 1890
The testimony tends to show that, immediately after the tenant vacated the insured house, the plaintiff went to see the agent of the defendant company at Omro, where the insured property was situated, informed him that the tenant had so removed, and asked him if her insurance was good, or, if it needed any change, what she should do, and that the agent replied that her insurance was good just as it was, and agreed to carry it in that way for thirty days. Also, the question having been suggested to the agent whether the house would be considered occupied while the plaintiff’s goods remained in it, he said it would, and there was no need of a vacancy permit to save the insurance while it was occupied in that way. This conversation occurred with the agent who issued the policy, and less than thirty days before the insured property was burned. The above testimony was controverted by other testimony on behalf of the defendant.
The court instructed the jury that, if they found the defendant’s agent did tell the plaintiff, in substance, that the policy would hold good for thirty days although the premises were vacant, the plaintiff was entitled to recover. By finding for the plaintiff, the jury necessarily found the existence of the above facts. As a matter of course, it was competent for the jury to give credit to the testimony on the part of the plaintiff as to what occurred between her and the agent, and to reject the testimony on behalf of the defendant giving a different version of what the agent said on the occasion.
There is no claim here that the agent waived any condition of the policy, but only that he construed certain words contained in it in a certain way. The term “vacant or unoccupied ” has no definite signification, applicable
In this case, the insured house was “to be occupied by the assured or tenant as a dwelling.” It was in fact occupied by a tenant when the policy was issued, of which the company had notice. It being doubtful what the term “ vacant or unoccupied ” means in such a case, and the policy in suit failing to define it, the plaintiff had the right to know1' v’hether the insurance company regarded her house as vacant or unoccupied immediately upon her tenant’s leaving it, to the end that, if the company did so regard it, she might take the necessary steps to keep good the insurance. This being a foreign insurance company, and presumably having no general officer in this state, there was no one but the agent of the company at Omro to wrhom she could conveniently and directly apply for the desired
The policy contained a stipulation that the agent of the company had no authority to change any of its conditions or restrictions by parol. But it is obvious that this stipulation is not involved in the determination of this case, for the agent did not assume to change any such condition or restriction.
By the Gourt.— The judgment of the circuit court is affirmed.