Smith v. State

| Wis. | Mar 12, 1912

Maeshall, J.

The cause involves a few questions which may well be briefly answered.

Was it essential to prove that the insurance was under a valid policy ? That is ruled in the negative by Parb v. State, 143 Wis. 561" court="Wis." date_filed="1910-10-25" href="https://app.midpage.ai/document/parb-v-state-8190008?utm_source=webapp" opinion_id="8190008">143 Wis. 561, 128 N. W. 65. It is considered that no time need be spent justifying the decision in that case. It may be regarded as now considerately affirmed.

Did the court err in permitting the insurance policy to be received in evidence without proof that the company was licensed to do business in this state ? That is also ruled in the negative by Parb v. State, supra. If plaintiff in error received the policy as the contract of the company and relied thereon up to and inclusive of the time of the fire and purposed, at such time, to recover thereon, that was sufficient as regards the statute, sec. 4405. Moreover, as suggested, the company was liable regardless of whether it offended against the statute in doing business here without being licensed.

Was the oral evidence of the person who countersigned the policy as agent and delivered it, that he was the company’s agent, competent to show authority in that regard ? The fact of agency may be established by oral testimony of the agent where his appointment is not in fact in writing, or required to be. O’Conner v. Hartford F. Ins. Co. 31 Wis. 160" court="Wis." date_filed="1872-01-15" href="https://app.midpage.ai/document/oconner-v-hartford-fire-insurance-6601060?utm_source=webapp" opinion_id="6601060">31 Wis. 160; Roberts v. Northwestern Nat. Ins. Co. 90 Wis. 210, 62 N. W. 1048. There is no written law requiring, as between an insurance company and third persons, agency appointments to be in writing. Sec. 1945s, Stats. (1898), penalizes the doing of business by a foreign insurance company in this state other than through agents duly authorized by the commissioner of insurance. The purpose of that is not to protect insurance companies. Failure to comply therewith by a company does not relieve it from liability upon its policies issued contrary to the statute. That sufficiently answers the foregoing questions but it might have been well passed with the suggestion that the evidence was received without objection.

It is said that the policy was void when the fire occurred because of a provision therein that, in case of the entry of a judgment of foreclosure and sale, the insurance shall become void. Counsel does not correctly quote from the policy. The language is this: The insurance shall be void in case of foreclosure proceedings “under any mortgage or trust deed.” There were no such proceedings. Moreover, it was sufficient for the case, as before indicated, if plaintiff in error held the policy at the time of the fire supposing it to be enforceable, and fired the building intending to rely upon the policy contract for indemnity.

By the Court. — Judgment affirmed.