207 Wis. 344 | Wis. | 1932
The plaintiff, Agnes Peck, sustained injuries on September 9, 1928, in a collision between two automobiles, one of which was operated by Oscar My dels and the other by Richard Newburg. Both of them were sued by her, and after recovering judgment against those defendants she brought an action to recover the amount of that judgment from the Hartford Accident & Indemnity Company and the United States Fidelity & Guaranty Company. The right to recover against the Hartford Accident & Indemnity Company was based upon a policy of insurance which it had issued to indemnify Mydels against liability sustained
Richard Newburg also commenced an action against the United States Fidelity & Guaranty Company to recover, under the policy which it had issued in the name of Jacob Newburg, as insured, the expense which Richard Newburg had incurred in defending the action in which Agnes Peck had recovered judgment against him and Oscar Mydels. Richard Newburg, before defending that action by counsel of his own selection, had duly tendered the defense thereof to the United States Fidelity & Guaranty Company, which-refused to provide for such defense on his behalf.
As defense to the respective complaints of Agnes Peck and Richard Newburg and the cross-complaint of the Hartford Accident & Indemnity Company, the United States Fidelity & Guaranty Company denied liability under the policy which it had issued on July 29, 1928, in relation to the automobile operated by Richard Newburg when the collision occurred. In its answers, which were not entirely identical, the United States Fidelity & Guaranty Company, in substance and effect, asserted as defense that on July 29, 1924,
(1) On July 29, 1928, Richard Newburg was not sole owner of the automobile in question;
(2) Jacob Newburg was (a) the owner of the legal title to that automobile, and (b) the holder of the certificate of title thereto, as security for indebtedness owing to him by Richard Newburg;
(3) Pettingill, the insurance agent through whom the policy was procured, knew, at the time of issuing the policy, the condition of the title to the automobile and the beneficial interest of Richard Newburg therein;
(4) Richard Newburg, in procuring the policy to be issued, did not make a representation to the effect that the automobile was owned by Jacob Newburg, which was false and which was made with intent to deceive; or which was a misrepresentation as to a matter which increased the risk or contributed to the loss.
Upon that verdict, in conjunction with other undisputed facts, the learned circuit judge held that the United States Fidelity & Guaranty Company was liable under its policy to indemnify Richard Newburg for the expense of his defense in the action commenced against him by Agnes Peck; that she was entitled to recover of that defendant and also the Hartford Accident & Indemnity Company (which by its answer had admitted its liability to her) the amount of her judgment against Richard Newburg and Oscar Mydels; that it was the duty of each of the defendants, the United States Fidelity & Guaranty Company and the Plartford Accident & Indemnity Company, to pay one-half of that judgment in favor of Agnes Peck; and that the Hartford Accident & Indemnity Company was entitled to recover of the United States Fidelity & Guaranty Company all sums in excess of such one-half, which it might be required to pay to satisfy that judgment. Judgments were entered accordingly, and the United States Fidelity & Guaranty Company appealed.
As Pettingill was appellant’s general agent, through whom the policies, covering that automobile, were procured in the years 1924 to 1928, inclusive, his knowledge as to the true condition of the title and the beneficial interest of Richard Newburg. therein was the knowledge of the company. Sec. 209.08 (1), Stats., which is applicable, provides :
“Knowledge of an agent' of a fire, casualty or marine insurance company at the time a policy is issued or an application made shall be knowledge of the company, and*351 any fact which breaches a condition of the policy and is known to the agent when the policy is issued or the application made shall not void the policy or defeat a recovery thereon in the event of loss.”
The knowledge with which appellant was chargeable, when its first policy was issued, it continued to be chargeable with at the time of the subsequent renewals. Farley v. Spring Garden Ins. Co. 148 Wis. 622, 134 N. W. 1054. Under the circumstances, appellant is estopped from asserting that the ownership of the automobile was otherwise than Pettingill, with full knowledge of the actual status, stated the title to be in the policies, which he issued annually for the express purpose of affording insurance protection to Richard Newburg, while operating that automobile with the consent of Jacob Newburg. The circumstances call for the application of the principle “that one person cannot assume a position in his business relations with another in respect to a transaction of a pecuniary nature upon which such other, acting reasonably, has a right to rely, and after such other has so acted change his position to that other’s prejudice and obtain judicial aid to enable him to effectuate his fraudulent purpose.” Welch v. Fire Asso. 120 Wis. 456, 462, 98 N. W. 227. The appellant is estopped from breaching good faith with its patron by issuing to him a policy and taking his money therefor with knowledge of conditions rendering it at once void. Welch v. Fire, Asso., supra; Farley v. Spring Garden Ins. Co., supra; Spohn v. National Fire Ins. Co. 190 Wis. 446, 209 N. W. 725. This court arrived at the same result, under similar circumstances, in other cases, but based its decision on the doctrine of waiver instead of estoppel in pais. Goss v. Agricultural Ins. Co. 92 Wis. 233, 65 N. W. 1036; Schultz v. Caledonian Ins. Co. 94 Wis. 42, 68 N. W. 414 ; McDonald v. Fire Asso. 93 Wis. 348, 67 N. W. 719; St. Clara Female Academy v. N. W. Nat. Ins. Co. 98 Wis. 257, 73 N. W. 767; Metcalf
Appellant further assigns error because, upon the actions being reached for trial, the court ordered the consolidation thereof for the purpose of trial, notwithstanding the objection of appellant that the actions involved different parties; that it would give to the parties who were adverse to appellant the right of cross-examination of witnesses, which they would otherwise have to call as their own witnesses; and that such consolidation would be prejudicial to appellant. Such an order for consolidation is commendable unless substantial rights of the litigants are prejudiced thereby. We do not believe that the order under review was prejudicial to appellant.
Appellant contends that the order gave to Agnes Peck and the Hartford Accident & Indemnity Company, in the action commenced by Agnes Peck, the advantage of examining Richard Newburg adversely and by leading questions, which they would not have had if there had been separate trials, and they could not call and examine him as an adverse party. However, those parties did not resort to that advantage. They did not call Richard Newburg as a witness. The plaintiff, as well as the Hartford Accident & Indemnity Company, rested immediately upon stipulating as to certain facts, without calling Richard Newburg. Then appellant called him as its witness, and thereupon the other parties, of course, had the right to cross-examine him, just as they would have had on separate trials if there had been no order for consolidation.
By the Court. — Judgments affirmed.