117 Wis. 531 | Wis. | 1903
It being a conceded fact that one of the three owners of the insured property, on March 1Y, 1900, three months after the issuance of the policy, transferred his interest to his co-owners, the policy became ipso facto void by virtue of the provision therein,
“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . .*534 if any change other than by the death of an insured take place in the interest, title, or possession of the subject of insurance,’’
unless such forfeiture was waived in some way. Keeler v. Niagara F. Ins. Co. 16 Wis. 523 ; Carey v. German Am. Ins. Co. 84 Wis. 81, 54 N. W. 18; Straker v. Phenix Ins. Co. 101 Wis. 413, 77 N. W. 752. The contention of the appellants is addressed to the establishment of some valid and effectual waiver by acts or words of the local agent other than an agreement indorsed on or added to the policy, and the counsel has collected and presented with much vigor and ability in analysis the opinions of many courts upon the general subject of waiver. By far the larger part of such authorities are, however, at best only applicable to a state of facts which appellants indeed claim to exist in this case, but which is negatived by the evidence and findings. Thus, many of the cases cited are addressed to- waiver of forfeiture or to propriety of reformation of the policy by reason of facts known to the agent to exist at the time of entering into the contract of insurance, and with reference to which it was understood such contract was to be framed. In the case at bar, the contract of insurance with the firm of Reindl, Novotny & Jicha was fully consummated before any suggestion of a prospective change in that firm was brought to notice of the agent. John R. Davis L. Co. v. Home Ins. Co. 95 Wis. 542, 548, 10 N. W. 59. The policy was written and delivered exactly in accordance with the understanding and contract which the parties then had, and the assured had enjoyed its benefits for two or three weeks. Thus the situation is distinguished from all that class of authorities, and we need not consider them. Many other cases, however, deal with the subject of waiver by acts of an agent after a policy is in force and concededly valid according to its terms. That the authority of such cases is at best doubtful since our standard insurance policy has been made both a contract and a law is certainly suggested by Bourgeois v. N.
There remains for consideration that part of appellants’ argument which seeks to predicate waiver or estoppel against the company upon the fact that, some two months after the conveyance of Novotny to his co-owners of the insured property, one of the then owners told the agent that such conveyance had been made. This was done casually, and with no apparent reference to the policy now in suit. Assuming, as counsel does, notwithstanding Stevens v. Queen Ins. Co. 81 Wis. 335, 51 N. W. 555, and Bourgeois v. Mut. F. Ins. Co. 86 Wis. 402, 407, 57 N. W. 38, that such knowledge of the agent is imputable to his principal, his argument seems to be that from mere silence and omission to compute and return the unearned portion of the premium the company either waives the forfeiture or is estopped to assert it. Such an argument, to be sustained, must have as a premise the proposition that if the insurer intended to stand upon this absolute and self-executing provision of .the policy he was bound to do something other than remain silent. Nothing in the contract which the parties had made imposed any such duty. The forfeiture clause made the policy void upon the happening of the event, not merely voidable on the exercise of election or doing of some other act by the company. It certainly
We are unable to find established by the evidence any conduct on the part of the defendant which, under the law established in this state, can be held to waive the unambiguous declaration of the policy that it should become void upon the contingency which happened, nor which can estop the defendant from insisting upon such forfeiture.
By the Court. — Judgment affirmed.