190 Wis. 446 | Wis. | 1926
The policy in question is a standard policy, and, pursuant to sec. 203.01 of the Statutes, contained the following provision:
“No one shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement added hereto, nor shall any such provision or condition be held to be waived unless such waiver shall be in writing added hereto; . . . nor shall any privilege or permission affecting the insurance hereunder exist or be claimed by the insured unless granted herein or by rider added hereto.”
“This entire policy shall be void, unless otherwise provided by agreement in writing added hereto, . . . (d) if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) ; or (e) if this policy be assigned before a loss.”
These provisions are plain and explicit. - They cover the subject of waiver and prescribe the method which must be pursued in order to effectuate a waiver. Assuming that an agent has authority to waive the conditions and provisions of a policy after it is once issued and delivered, such authority is specifically limited, and such waiver can only ensue where the provisions of the policy have been complied with. A policy of insurance is a contract between the insurer and the insured, and the provisions thereof are binding upon both parties unless such provisions are legally waived or the contract is modified in the manner provided by the terms of the policy. Under these provisions of the
The decisions in Wisconsin upon the subject of waiver as to conditions, both before and after the enactment of the first standard policy law, have been exhaustively and ably reviewed in the case of Welch v. Fire Asso. 120 Wis. 456, 98 N. W. 227, and the distinction between a waiver and an estoppel is there clearly treated and defined. The court in the Welch Case, Mr. Justice Marshall rendering the opinion, uses the following language:
“The court has never held, in the face of a policy provision forfeiting the contract for a violation of its provisions by the assured after the issuance thereof, such provision being accompanied by a stipulation that it shall not be deemed waived other than by a writing indorsed thereon, that a waiver could take place in any other manner. The court has often held to the contrary.” Citing authorities.
In the Welch Case the doctrine of waiver was 'not involved, and the case was decided solely on the principle of estoppel in pais, — “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
Numerous cases, like Keith v. Royal Ins. Co. 117 Wis. 531, 94 N. W. 295; Hankins v. Rockford Ins. Co. 70 Wis. 1, 35 N. W. 34; Carey v. German American Ins. Co. 84 Wis. 80, 54 N. W. 18; Olbrich v. Mutual Fire Ins. Co. 184 Wis. 413, 198 N. W. 607; Bloomer v. Cicero Mutual Fire Ins. Co. 183 Wis. 407, 198 N. W. 287; Burr v. German Ins. Co. 84 Wis. 76, 54 N. W. 22; and Bourgeois v. Mutual Fire Ins. Co. 86 Wis. 402, 57 N. W. 38, are cited in the brief of the learned counsel for the company, but, not being applicable herein, no usefyl purpose can be served by discussing them in detail. These cases substantially assert the validity of conditions in a policy of fire insurance; refer specifically to the subject of waiver; and hold that where conditions of a policy have been breached by a transfer of interest or title or by placing additional incumbrances upon the property, there being no waiver of the conditions as stipulated in the policy, the policy becomes void from the time of the breach. In other words, these cases involve specifically the breach of a condition, and were not decided upon the equitable principle of estoppel in pais.
In 14 Ruling Case Law, 1179, title “Insurance,” § 355, it is said: “Even though an indorsement is required by a
“Prior to and upon the 8th day of January, 1889, Eben-ezer S. Strait owned certain premises situated in the county of Rensselaer. On that day he procured from the'defendant, through its general agents at Troy, a policy of insurance upon the buildings on the premises insuring him against loss or damage by fire to the extent of $2,000. It was a New York standard fire insurance policy. At that time there were several mortgages upon the property held by the Troy Savings Bank, amounting to $16,000, and this policy with others was held by the bank as collateral, and it was in its possession. On August 1, 1890, Strait conveyed the property insured to Emily J. Manchester, who took immediate possession. The insurance by the defendant was also transferred to her. Shortly after these transfers, Strait, as her agent, notified the general agents of the defendant thereof and requested them to go to the bank where the policy was and make the necessary indorsement upon it, which they agreed to do. This agreement, however, they failed to perform. In the following September a fire occurred by which the property was destroyed.”
In the opinion it is said:
“The most important and practically the only question in this case is whether upon those facts the plaintiffs were entitled to recover. The defendant, through its general agents, had notice of the change of ownership, and agreed to indorse upon the policy the defendant’s consent to the transfer from Strait to Mrs. Manchester. . . . This agreement it failed to perform. The plaintiffs now seek to recover as damages for a breach of that agreement the loss they have sustained. The defendant endeavors to relieve itself from liability because no consent was actually indorsed upon the policy. In other words, it undertakes to defeat the plaintiffs’ action upon the ground of the nonperformance of an act which it expressly agreed itself to perform.” (Italics ours.)
But it is further argued by the learned counsel for the insurance company that Johnson was not a general agent of the company; that he was a mere soliciting agent, with authority to issue policies of insurance, and that when the policy was issued and delivered to the original insured his authority ceased; that the knowledge of the agent at the time of the attempted transfer of the policy was not the knowledge of the company, and that the acts of the agent were not binding upon the company. It is true that under the standard policy the authority of the agent to waive conditions of the policy is limited. It is confined to a waiver in a manner and form provided for in the policy, which requires a waiver and consent in writing indorsed upon the
In Hankins v. Rockford Ins. Co. 70 Wis. 1, 35 N. W. 34, it is said:
“Whenever an insurance company authorizes any person to do any one of the things thus specified, it cannot disclaim the agency of such person in the doing of anything necessarily implied in the specific act thus authorized.”
Having granted to the agent the authority to consent to a change in ownership and to validate such change, the acts of the agent become the acts of the company, and it is bound by such acts. So that it can be said that when Johnson represented and pretended that all of the necessary requisites had been complied with and that the plaintiff was fully protected, the plaintiff having relied upon such representations and statements and having changed his position in regard to the same to his detriment, the company will not now be heard to complain or to profit by the failure of its agent.
But it is further argued by counsel for the company that on the 15th day of August, 1923, when the plaintiff applied to the agent for a transfer of the policy and for its validation, the plaintiff and the company were entire strangers; that the contract of insurance had been previously breached by a transfer of the interests of the assured; and
Counsel for the company also assert that the court was not warranted in answering the first two questions of the special verdict; that there was a material conflict between the testimony of the plaintiff and of Roesling and the defendant Johnson. We have examined the record with great care, and are satisfied that, while an apparent conflict exists, the testimony of Johnson is so conflicting and contradictory that had the first two questions been submitted to the jury, with a different result, the answers thereto could not have been sustained. Johnson testified that in the interim between his adverse examination and the trial he had suffered a severe illness which affected his memory. No useful purpose would be served in reviewing the testimony of Johnson elicited on the adverse examination and on the trial, and we will therefore refrain from doing so. Suffice it to say that the action of the court was fully warranted and justified.
With the views thus expressed, it will be unnecessary to consider the other points raised in the case.
No appeal having been taken from the judgment of the lower court dismissing the complaint as against Johnson, the case against the latter is not before us and cannot be considered. In other words, the legal effect of the failure to appeal, in so far as the instant case is concerned, is the same as though no action had ever been prosecuted against Johnson. The holding of this court is merely to the effect that Johnson was the agent of the company on August 15,
By the Court. — The judgment of the lower court is affirmed.