Schauer v. Queen Insurance Co. of America

88 Wis. 561 | Wis. | 1894

Cassoday, J.

The plaintiffs resided, and their gristmill and warehouse were situated, fourteen miles from Green Bay, where Warren & Son had for years conducted an insurance business. At the time in question, and for a long time prior thereto, the plaintiffs did all their insurance business with Warren & Son, and carried upon their gristmill and warehouse from eight to ten thousand dollars insurance. Of that amount only from five to seven thousand dollars were in companies represented by Warren & Son, and the balance Warren & Son were in the habit of procuring for the plaintiffs from other companies, through other insurance agents. The character and situation of the property seem to have made it difficult at times to procure as much insurance as the plaintiffs were desirous of carrying. The result was that policies were, from time to time, canceled by certain insurance companies, and rewritten in certain other companies. This necessitated more or less correspondence between Warren & Son and the plaintiffs, and the frequent sending and returning of policies. Apparently to obviate this difficulty, ■the plaintiffs, in the fall or winter of 1892, and prior to January 1, 1893, took all their policies of insurance, and delivered them to and left the same with Warren & Son, with the understanding that they should keep their property insured, in the aggregate, for the desired amount; and Warren & Son agreed to do so to the best of their ability.

It appears that in the forepart of January, 1893, Warren & Son held policies in the Oakland Insurance Company on the property of the plaintiffs, in the aggregate for about three or four thousand dollars, and one of those polices, for the amount of $1,500, was canceled by that company and Warren & Son, and in lieu thereof the policy in question, through the agency of Warren & Son, was issued by the defendant to the plaintiffs, without any previous knowledge on- their part, and without their paying any premium therefor. About January 13, 1893, the plaintiffs were informed by Warren & Son that the policy of $1,500 in the Oakland had been canceled, and a new policy for the same amount had been taken in the defendant company, with which they expressed themselves satisfied. January 14, 1893, the defendant’s manager wrote Warren & Son from Chicago, requesting an “ immediate retirement of this policy,” on the ground that the company declined all business outside of Ft. Howard and Green Bay. Warren & Son received the letter, January 15, 1893, and entered the policy canceled on the books of the company, January 19, 1893. Thereupon Warren & Son, in pursuance of such general understanding, sought to procure the same amount of insurance in other companies and through other agencies,— first in Chicago and then in Green Bay, and had succeeded, all but writing the. policy, when the same was prevented by the occurrence of the fire, January 25, 1893.

The only question presented is whether the policy was effectually canceled by the notice so given to Warren & Son under the clause of the policy which provides that “this policy shall be canceled at any time at the request of the assured, or by the company, by giving five.days1 notice of such cancellation.” The only objection to the notice is that it should have been given to the plaintiffs personally, instead of Warren & Son; but we are clearly of the opinion that the trial court was right in holding, as a matter of lawq upon the undisputed evidence that the business arrangements between Warren & Son and the plaintiffs in reference to their insurance authorized Warren & Son to receive such notice of cancellation. Besides, the answer of the jury to the first question is unchallenged. That finding is to the effect that they were such agents for the purpose of procuring insurance upon and keeping the mill property of the plaintiffs insured to a certain amount. To do that effectually required that they should have the earliest possible notice of any cancellation. To serve such notice on the plaintiffs, and not on them, would tend to defeat the very object of such agency. It certainly would in this instance, for, as it was, Warren & Son did not have sufficient time to procure a new policy — and that was the very object of requiring the notice. Upon the facts stated, we must hold that the duties of Warren & Son to the defendant and to the plaintiffs were in no sense repugnant, Hartford F. Ins. Co. v. Reynolds, 36 Mich. 502; Stone v. Franklin F. Ins. Co. 105 N. Y. 543.

By the Court.— The judgment of the circuit court is affirmed-