50 Wis. 671 | Wis. | 1881
The evidence is undisputed that, by the terms of the contract between the plaintiffs and the agent Taylor, the risk was to commence when the premium was paid, that is, on Saturday, May 12. The plaintiff W. H. Knox (who negotiated for the plaintiffs), and Taylor, both so testified; If, therefore, the defendant company is otherwise liable, it is manifest that the policy should be reformed to express the contract which the parties actually made.
The court found that Taylor had no authority to bind the defendant by his contract with the plaintiffs; that the latter were guilty o.f a fraudulent suppression or concealment of facts material to the risk; and that the plaintiffs were not the owners of the insured property. If either of these findings is supported by the evidence, the judgment cannot be disturbed. If none of them are so supported, the judgment must be reversed. They will be considered in the order above stated.
1. The proposition that Taylor had no power to bind the
It does not appear that the plaintiffs knew the terms of the certificate, or that they made any effort to learn the extent of Taylor’s authority to act for the company. It was satisfactorily proved that, on the day after the fire, the plaintiffs forwarded a notice of the loss to the general office of the company, addressed to its secretary. On or about May 26th, they forwarded formal proofs of loss; and on May 30th, W. H. Knox, one of the plaintiffs, was subjected to an examination respecting the loss, by one Harmon, the general agjsnt of the company for Wisconsin and other states. A stipulation in the policy.gave the company the right to such examination. June 9th, Taylor forwarded to the company an itemized statement of premiums received by him in May, which contains the item: “Policy 111, Knox Bros., $33.90.” After this is written “ not reported;” but when or by whom does not appear.
. On this state of facts, we need not stop to investigate the extent of Taylor’s actual authority in the premises; for, under numerous adjudications here and elsewhere, the defendant has repeatedly estopped itself to deny his authority. The conduct of the company in respect to the policy is entirely inconsistent with the idea that Taylor had no authority to issue it, and on familiar principles estops the company from denying his authority to do so. Bigelow on Estoppels, 578; Webster v. Ins. Co., 36 Wis., 67; N. W. M. L. Ins. Co. v. Germania Fire Ins. Co., 40 Wis., 446. Again, Taylor must be deemed the agent of the defendant in respect to the policy in suit by virtue of section 1977, B. S., p. 581. The acts of the defendant in respect to the policy bring the case within the rule of Schomer v. Hekla Ins. Co., ante, p. 575. The opinion by the chief justice contains all that it is necessary to say on the subject.
2. Were the plaintiffs guilty of suppressing, or concealing from the agent, Taylor, any fact material to the risk? On the undisputed evidence, we think this question must be answered in the negative. It appears that the insured lumber was piled about eight rods north of the planing mill of Oopps & Co.,
It is claimed that the plaintiffs failed to inform Taylor of the dangerous character .of the Clifford mill, which is the fraudulent concealment alleged. The plaintiff W. H. Knox testified that he did give Taylor that information when the negotiations for insurance were pending on May 12th, and also during the preceding fall, when Taylor was there making surveys of all the mills in that vicinity. .In fact, during such negotiations, one Whitney told W. H. Knox, in the presence and hearing of Taylor, that a fire from the Clifford mill had been kindled in the yard the .day before. The testimony of Taylor as to what Knox said to him concerning the danger from the Clifford mill is so conclusive against the claim that there was any fraudulent concealment, that we shall he justified in quoting from it somewhat at length. He says: “I went to Knox's office about 1 o’clock. I was asking him about the lumber when I was taking the application. Question. Anything said in your hearing about the hazard of the lumber? Answer. The remark he made [was], he was afraid of the mill over there. Q. What mill? A. That shingle mill.' He pointed it out to me. There was nothing else said to me about the shingle mill, only it threw sparks of fire. They said they were damned afraid that it would burn them up. They called my attention to it. I don’t know as I made any inquiries in particular as to the. extent of the danger. I looked at that mill. I saw the distance. I saw it was detached. I knew it
In view of this testimony, which agrees with that of W. H. Knox, and which is entirely undisputed, it cannot be held' that the plaintiffs were guilty of the alleged fraudulent concealment.
3. The question of title may readily be disposed of. W. H. Knox testified positively that the plaintiffs were the owners of the lumber. i He was not cross-examined on the subject. The only testimony which tends in any manner to controvert this direct, unqualified assertion of the plaintiffs’ ownership, is that of the plaintiff S. G. Knox, who oil his cross examination testified as follows: “I don’t think the title of that lumber was in Mr. Scott. He had had a bill of sale of it. Question. "Wasn’t he the holder of that bill of sale at that time? Answer. I couldn’t tell you. I didn’t do the business. My brother did the business. That bill of sale was given as security for a debt.”
It will be observed that S. G. Knox did not testify that Mr. Scott then held a bill of sale of the lumber, but only that he once did: “He had had a bill of sale of it.” The witness evidently thought the security had been cancelled, although he did not know the fact, else he could scarcely have said, “ I don’t think the title of that lumber was in Mr. Scott.” Coming, as this testimony does, from one who had'no personal knowledge of the transaction with Mr. Scott, we cannoUsay that it overcomes the positive testimony of W. H. Knox (who had such personal knowledge) that the plaintiffs were the owners of the lumber. If the defendant seriously intended to dispute the plaintiffs’ title, it should at least have interrogated
Our conclusion is, that the findings of the circuit court on all of the propositions above considered are erroneous, and that the plaintiffs have established their right to recover by a clear and satisfactory preponderance of evidence.
By the Court. — -The judgment is reversed, and the cause remanded with directions to the circuit court to give judgment for the plaintiffs for the relief demanded in the complaint.