| Wis. | May 3, 1927
Lead Opinion
The following opinion was filed January 11, 1927:
Upon the trial as well as in briefs of counsel and upon the oral argument here it was freely conceded by all parties that the bills of sale executed by the plaintiff to Searls and Wiltrout were in legal effect chattel mortgages and should be treated and considered as such in determining the rights of parties.
It was argued on behalf of the Concordia Company and the Northern Company, which issued the so-called trustee policies, that the chattel mortgages were invalid because the description of the property mortgaged was ambulatory and indefinite. That contention must be overruled. It described all of the properties of the various kinds mentioned, and a description of that character is' a sufficiently definite description.. 11 Corp. Jur. 461, note 57, and cases cited.
Sec. 203.01, Stats., lines 62-67, provides:
“Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage to any property insured hereunder while incumbered by a chattel mortgage, and during the time of such incumbrance this company shall be liable only for loss 'or damage to any other property insured hereunder.”
Prior to amendment made by ch. 127, Laws of 1917, the entire policy was avoided if personal property insured became incumbered by chattel mortgage. This provision,
Plowever, it is claimed by plaintiff in this case and by the Northern and Concordia companies that knowledge of the insurance agent, Fritzinger, of the existence of the chattel mortgages estops the Dubuque, Millers, Marquette, and Farmers from asserting the invalidity of their policies on that account.
Sec. 209.08 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 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.”
However, knowledge acquired by the agent of an insurance company after the issuance and delivery of the policy is not imputed to his principal when not acquired by him while acting within the scope of his authority as agent of the company. Bloomer v. Cicero Mut. F. Ins. Co. 183 Wis. 407" court="Wis." date_filed="1924-04-08" href="https://app.midpage.ai/document/bloomer-v-cicero-mutual-fire-insurance-8194345?utm_source=webapp" opinion_id="8194345">183 Wis. 407, 198 N. W. 287.
The companies issuing the four policies named, which will be hereinafter referred to as the owner policies, seek to avoid the effect of this rule by claiming that Fritzinger had an interest adverse to the companies in that he acted in a dual capacity in attempting to represent both the insurers and the insured. It appears that Fritzinger owned twenty-six and one-half shares of stock of the plaintiff company out of a total of 665 shares. It also appears that the manager of'the plaintiff company consulted Fritzinger with respect
“Fritzinger was not interested adversely to said defendant companies, or any of them, at any of the times herein referred to, and acted wholly and solely as the insurance agent of the defendant companies.
“That each and all of the policies affected by this action were so issued by the said Fritzinger, and the said plaintiff company had no other insurance of any kind on the property included in said policies.”
While this finding is challenged it is supported by the evidence and cannot be set aside. It appears, therefore, without dispute that the Marquette policy for $4,500, the Farmers policy for $5,000, and the Concordia policy for $10,000 were issued contemporaneously with full knowledge on the part of the companies issuing the same of the mortgage dated January 12, 1925, as well as of the mortgage of June 1, 1924, to C. D. Searls. It is therefore considered and held that said policies were valid outstanding obligations at the time of the fire on February 28, 1925.
We come now to the consideration of the effect upon the policies issued on January 9, 1925, of the execution and delivery of the chattel mortgage dated January 12, 1925, namely, the policy of the Northern for $4,000, policy of the Millers for $4,000, and the policy of the Dubuque for $4,000. While Fritzinger was the agent of these companies, he was transacting no business for them when, on the 25th day of February, 1925, the date when the Concordia policy was issued, he acquired knowledge of the chattel mortgage to Wiltrout. Under such circumstances the companies for
We shall next consider the effect of the execution and delivery of the Wiltrout chattel mortgage upon the policy of the Northern number 122407, issued December 1, 1924, to Searls as trustee. It is not contended by any one that Searls did not have an insurable interest in the property; that interest was measured by the amount of the loan to secure the payment of which the mortgage was given. The policy issued to Searls did not include manufactured stock. The mortgage given to Wiltrout did include such stock, but the liabilities of the respective companies are not affected thereby, except, of course, that the Northern under its policy issued to Searls cannot be made liable for loss on manufactured stock. It seems quite clear that the interest insured under the Searls mortgage was not conveyed or incumbered by the execution and delivery of the Wiltrout mortgage, which was made specifically subject to the Searls mortgage. Therefore the policy issued by the Northern on December 1st remains valid and in full force and effect.
It is, however, urged very strenuously that under the rule laid down in Lumbermen’s Nat. Bank v. Corrigan, 167 Wis. 82, 166 N.W. 650" court="Wis." date_filed="1918-03-05" href="https://app.midpage.ai/document/lumbermens-national-bank-of-menominee-v-corrigan-8192555?utm_source=webapp" opinion_id="8192555">166 N. W. 650, all of the policies are valid and concurrent. The argument is to this effect: both Searls and Wiltrout had become indorsers upon outstanding obligations of the plaintiff company; that it was the desire and purpose of the company and the mortgagees and the insurance companies to protect these guarantors; that the sole object and purpose of the execution and delivery of the bills of’ sale was to enable the grantors to be protected under policies of insurance; that the plan adopted was sug
It is claimed further that Fritzinger collected the premium on the policies issued January 9th, subsequent to the date of the Wiltrout mortgage. This, however, does not clearly appear from the record. While the Wiltrout mortgage is dated January 12th, the policy of the Concordia issued to secure Wiltrout is dated February 25th, six weeks later. Even if it should appear that in the ordinary course of business Fritzinger had extended credit and that he had received from the insurance the amounts of the premium subsequent to the date of the execution and delivery of the Wiltrout mortgage to his knowledge, it is not perceived how this could have any effect upon his principal. He acquired no information with respect to the Wiltrout mortgage while discharging any duty or obligation which he owed to them. Such information as he acquired he acquired in relation to the execution and delivery of the policy dated February 25th.
Holding as we do that the chattel mortgages are valid, it is apparent that the mortgagee policies are not concurrent. They are issued upon different and distinct interests. For the reasons stated we hold the policies issued December 1, 1924, to Searls, trustee, to be valid; policies issued by the Dubuque, Millers, and the Northern, dated January 9th, to be avoided by the execution and delivery of the Wiltrout mortgage; that the policies issued by the Farmers and the Marquette on February 25th were issued with full knowledge of the Searls and Wiltrout mortgages and are therefore valid but not concurrent. We hold that the policy issued by the Concordia dated Febrdary 25th to Wiltrout, trustee, is valid, but not concurrent either with the policy issued by the Northern on December 1st or with the policies issued
By the Court. — The judgments appealed from are reversed, and the cause remanded with directions to enter judgment in the respective cases as indicated in this opinion.
Rehearing
The following opinion was filed May 3, 1927:
On rehearing.
By way of a motion for rehearing it has been called to the attention of the court that some questions remained undisposed of by the opinion as filed. It is stated in the opinion:
“The policies issued by the Farmers and the Marquette on February 25th were issued with full knowledge of the Searls and Wiltrout mortgages and are therefore valid but not concurrent.”
Counsel correctly interpret this as meaning not concurrent with other mortgagor policies. They are concurrent as to each other.
On behalf of the mortgagee policies it is argued that they are policies of indemnity and that the insurers under those policies are entitled to subrogation; that the debt having been satisfied there is nothing to subrogate them to, and for that reason the plaintiff mortgagor cannot recover.
The standard policy contains the following clause in relation to subrogation:
“If loss or damage is made payable, in whole or in part, to a mortgagee not named herein as the insured, this policy may be canceled as to such interest by giving to such mortgagee a ten days’ written notice of cancellation. Upon failure of the insured to render proof of loss such mortgagee shall, as if named as insured hereunder, but within sixty*634 days after notice of such failure, render proof of loss and shall be subject to the provisions hereof as to appraisal and times of payment and of bringing suit. On payment to such mortgagee of any sum for loss or damage hereunder, if this company shall claim that as to the mortgagor or owner, no liability existed, it shall, to the extent of such payment be subrogated to the mortgagee’s right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee’s right to sue; or it may pay the mortgage debt and require an assignment thereof and of the mortgage.” Sec. 203.04, Stats.
All of the policies (both mortgagor and mortgagee) were written by a single agent who was fully informed of the purposes of all parties to the transaction. In fact, it was upon his advice and suggestion that the transaction took the form that it did. The express desire of the mortgagor was to secure the mortgagee against loss by fire and at the same time protect to that extent its own interest. Upon the advice of the agent, the bill of sale was executed and the policies issued in the name of the mortgagee. The mortgagor procured and paid the premium upon all of the various policies.
It seems to be well established that where insurance has been procured at the expense of the mortgagor and for the benefit of the mortgagee as well as himself, upon payment of a loss the amount paid must be applied upon the indebtedness. 11 A. L. R. 1296, par. 4, col. 2, and cases cited; 118 Am. St. Rep. 970, note, “Insurance at Expense of Mortgagor;” Baker v. Monumental Sav. & L. Asso. 58 W. Va. 408" court="W. Va." date_filed="1905-11-28" href="https://app.midpage.ai/document/baker-v-monumental-savings--loan-assn-8175756?utm_source=webapp" opinion_id="8175756">58 W. Va. 408, 52 S. E. 403, 3 L. R. A. n. s. 79; 5 Joyce, Insurance (2d ed.) p. 5895, § 3556; Pendleton v. Elliott, 67 Mich. 496" court="Mich." date_filed="1887-11-10" href="https://app.midpage.ai/document/pendleton-v-elliott-7933318?utm_source=webapp" opinion_id="7933318">67 Mich. 496, 35 N. W. 97; 41 A. L. R. 1274; Burton-Lingo Co. v. Patton, 15 New Mex. 304, 107 P. 679" court="N.M." date_filed="1910-02-28" href="https://app.midpage.ai/document/fire-assn-v-patton-6467554?utm_source=webapp" opinion_id="6467554">107 Pac. 679, 27 L. R. A. n. s. 420; 26 Corp. Jur. pp. 455-461, § 625, and cases cited.
Here the insurance companies not only did not pay the
For these reasons tve conclude that the right of subro-gation does not exist under the facts in this case.