24 Ind. App. 238 | Ind. Ct. App. | 1900
The policy of fire insurance upon which this action is based provides, among other things, that “if the property be sold, transferred, or is or bécomes encumbered by mortgage or trust deed, * * * or upon its passing into the hands of a receiver, or if this policy be assigned before a loss, then, and in every such case, this policy shall, without the written consent of this company thereto indorsed hereon, become absolutely void.” It also provides that neither the agent who issued the policy, nor any other person, except the company’s secretary, has authority to waive any terms of the policy, nor is the agent’s assent to an increase of risk binding on the company until
The policy was issued by appellant’s local agent January 30, 1896, for one year. The property burned December 29, 1896. The insured placed three chattel mortgages on the property, one dated November 23, 1896, and two dated December 4, 1896. Neither the local agent nor the company knew of the mortgages until after the fire. The resident or local agent testified that he learned of the mortgages after the fire; that he went to the scene of the fire in response to a request from the insured; that he told them he was sorry the complications had arisen, but that the placing of mortgages on the stock had voided the policy, and that they had no claim upon the company; that he had no authority to speak for the company, and had nothing to do with the adjustment of it; that he would report the loss to the company, and that they would send a person specially authorized to attend to that class of business, and that he would make a proper disposition of the matter. , One of the firm insured testified that the local agent asked about the mortgages, and witness told him, and gave him the amount; that the agent then said he Avas sorry to find it in that condition; that the condition of the policy had been violated, but that he would write a complete statement of the matter to the company, and advise them to treat the insured fairly, as it was an honest loss; that the agent gaA^e no directions as to what should be done with the stock, or anything of that kind. The other member of the firm testified that the agent said to him he Avas sorry to find the stock mortgaged, asked the witness if it was mortgaged, and witness said it
It further appears that the local agent' notified the company of the loss by letter, but said nothing about the mortgages; that the company, acting upon this notice, sent its adjuster to the place of the fire, who at the time knew nothing of the mortgages; that he instructed the insured to write for bills and invoices, the same having been burned, to put the goods not destroyed in as good shape as possible; to advise him when they were ready, and he would return. The insured sent for the bills and invoices, put the goods in shape, and notified the adjuster. "When he returned the second time, he did not yet know of the mortgages, and entered upon a consideration of the loss. Before proceeding far he learned of the mortgages, and then denied the company’s liability.
Several questions are presented, but the question upon which the appeal practically rests is whether, upon the facts, the company is estopped from claiming a forfeiture of the policy because of the execution of the chattel mortgages.
The public record of a chattel mortgage upon insured property is not notice thereof to the insurer. Phenix Ins. Co. v. Overman, 21 Ind. App. 516; Shaffer v. Milwaukee Ins. Co., 17 Ind. App. 204.
If the insurer, with knowledge of the facts constituting a forfeiture, continues to treat the contract as in force, and induces the insured to incur expenses and trouble while acting in that belief, the insurer is estopped to take advantage of the forfeiture.
An insurance policy is a contract, and the insured accepts it with knowledge of all its conditions and stipulations. In the absence of any fraud or mistake, the insured is conclusively presumed to know its contents. The condition
If the company’s local agent, at the time the policy was issued, or at any time before the loss, knows of the violation of conditions of the policy, the knowledge of the agent is the knowledge of the company, and after the loss the company can not defend because of such breach of the contract. To this effect are the following cases cited by counsel for appellee: Forward v. Continental Ins. Co., 142 N. Y. 382, 37 N. E. 615, 25 L. R. A. 637; Phenix Ins. Co. v. Hart, 149 Ill. 513, 36 N. E. 990; Williamsburg, etc., Ins. Co. v. Cary, 83 Ill. 453; Carpenter v. German American Ins. Co., 135 N. Y. 298, 31 N. E. 1015; Bennett v. Council Bluffs Ins. Co., 70 Iowa 600, 31 N. W. 948; Insurance Co. v. Stanton, 56 Ill. 345; Moffitt v. Phenix Ins. Co., 11 Ind. App. 233. But the principle declared in these cases is not applicable to the facts in the case at bar.
An examination of the other cases cited by appellees’ counsel also shows a materially different state of facts from those in the case at bar. In Brown v. State Ins. Co., 74
In Phenix, etc., Ins. Co. v. Hinesley, 75 Ind. 1, it was
A corporation is not charged with information casually obtained by its agent. Shaffer v. Milwaukee Ins. Co., 17 Ind. App. 204; Union Nat. Bank v. German Ins. Co., 71 Fed. 473, 18 C. C. A. 203. But if in such case the corporation act through such agent in a matter where the information possessed by him is pertinent, the agent’s information becomes the principal’s. Willard v. Denise, 50 N. J. Eq. 482, 26 Atl. 29.
Knowledge of an agent concerning a matter about which the insured knows he is not authorized to act, and in respect of which he does not act in behalf of the company, is not ground of estoppel. See 1 May on Ins. (3rd ed.), §153; Mitchell v. Lycoming Ins. Co., 51 Pa. St. 402.
The local agent who wrote the policy had authority to receive applications, write and cancel policies, and collect premiums, but there is nothing to show he had any authority in the premises after a loss. Whatever may have been his powers with reference to issuing policies and the like, no inference arises therefrom that he had authority to adjust and settle losses. 2 Wood on Ins. (2nd ed.), §429; Bush v. Westchester Ins. Co., 63 N. Y. 531; Lohnes v. Insurance Co., 121 Mass. 439; Smith v. Niagara Ins. Co., 60 Vt. 682, 15 Atl. 353, 1 L. R. A. 216.
But we do not think it necessary to inquire into the extent of such agent’s authority generally, nor by virtue of the certificate of authority issued under the statute by the Auditor of State (§4915 Burns 1894, §3765 Horner 1897), because the insured were notified immediately after the fire and as soon as the agent learned of the mortgages, that he had no authority to speak for the company upon the effect of the mortgages, and nothing to do with the adjustment of the loss. 2 Wood on Fire Ins. §§411, 420; Security Ins. Co. v. Fay, 22 Mich. 467.
In the case at bar the local agent told the insured he had no authority to adjust the loss, and that the company would send an agent to attend to that.. There was no “unexplained refusal” of the local agent to act in the case at bar. The insured had no right to rely upon any apparent authority of the agent because the agent said at the time he had no authority. There is nothing in the record to show that the company at any time through its proper agents, having knowledge of the facts, did anything to. mislead the insured. They were not induced to act upon any false representations. No act was done with knowledge of the forfeiture, which necessarily operated as a recognition of the validity
The verdict is not sustained by sufficient evidence, and the motion for a new trial should have been sustained. Judgment reversed.