120 Wis. 456 | Wis. | 1904
A decision in appellant’s favor of one or more of these questions would require a reversal: (1) Was the person who procured the policy for respondent, delivered the same to him, received the premium therefor and paid it to appellant through its agents, Loney & Peekham, its general agent under the laws of this state ? (2) If he was such agent, so that his knowledge of the true character of respondent’s title must' be deemed equivalent to knowledge thereof' by appellant, can the latter yet defeat his claim because of the forfeiture clause respecting the title to the subject of insurance being other than absolutely vested in him, and the
The first question is covered by the statute (sec. 1917, Stats. 1898). It provides:
“Whoever solicits insurance on behalf of any . . . person desiring insurance of any kind, or transmits an application for or a policy of insurance, other than for himself, to •or from any such corporation, or who makes any contract for .insurance, or collects any premium for insurance, or in any manner aids or assists in doing either, or in transacting any business of like nature for any insurance corporation, . . . shall be held to be an agent of such corporation to all intents and purposes unless it can be shown that he receives no compensation for such services.”
No argument is needed to demonstrate that the acts of Eo-wler in reference to the policy in question satisfy some -one of the circumstances mentioned in the statute, fixing his status, to have been that of a general agent of appellant. It is contended that, as he acted in the capacity of broker, Toney & Peckham being the regular agents of appellant, whatever business he did was either for such agents or for the assured, hence that the statute does not apply. That is -clearly ruled otherwise by John R. Davis L. Co. v. Hartford F. Ins. Co. 95 Wis. 226, 70 N. W. 84; Schomer v. Hekla F. Ins. Co. 50 Wis. 575, 7 N. W. 544, and other cases, in which it is held that a person who procures a policy of fire insurance for another from the agent of the insurance company issuing the same, acts in a twofold capacity; that of agent for the insured, and, by force of the statute, agent for the insurer; and that his knowledge at the inception of the contract is deemed to be that of the company the same as if he were regularly employed by it as its general agent.
Upon the second question submitted, it appears that, unless
It is confidently insisted in appellant’s behalf that the standard policy law has changed the foregoing judicial rule, and that this court has so held. There is some warrant therefor, though a careful examination of all the decisions bearing on the subject shows that the court has not committed itself to the extent claimed by counsel. There are three classes of cases to be considered: (1) Those involving policies made after ch. 195, Laws of 1891, was passed, and when it was supposed to be valid; (2) those decided after such law was condemned as unconstitutional, but wherein it was referred to in a way to indicate that the decisions might have been otherwise had the attempted legislation been effective; (3) decisions made as to policies governed by the present valid policy law. The provisions under the first law, as regards the questions involved here, are similar to those in the later law except for an additional clause which will
The only case of special significance in the first class above mentioned is Bourgeois v. N. W. Nat. Ins. Co. 86 Wis. 606, 57 N. W. 347. Language was there used to the effect that the legislative purpose was to have but one form for insurance contracts, to require it to be in -writing, and to confine all inquiries as to the legal right of the parties to the statements therein. The only application of that embodied in the decision was this: It was held that a verbal promise by an agent at the time of delivering the policy, that the assured might thereafter do things respecting the subject of the insurance inconsistent with the terms of the policy, is within the prohibition of any agreement respecting the subject of the insurance other than one indorsed upon the policy or added thereto and within the prohibition respecting waiver by agents. The doctrine of waive.r, strictly so called, was what was in the mind of the court. That of estoppel preventing the company from breaching good faith with its patron by issuing to him a policy and taking his money therefor with knowledge of conditions rendering it at once void, was not suggested or involved.
Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738; Goss v. Agricultural Ins. Co. 92 Wis. 233, 65 N. W. 1036; McDonald v. Fire Asso. of Phila. 93 Wis. 348, 67 N. W. 719; Hobkirk v. Phoenix Ins. Co. 102 Wis. 13, 78 N. W. 160, are in the second class referred to. The reasoning in each of them is that there was an effectual waiver of a condition contained in the policy under the judicial rule, that not having been abrogated by the law of 1891 since such law was void. It is fair argument to say from those decisions that had the law been regarded as binding, they would have been to the effect that the standard policy law did abrogate
Ch. 195, Laws of 1891, was enacted for the purpose of prescribing a written form of policy which would prevent any waiver of any conditions therein, except as therein prescribed. On the assumption that that act was valid, this court held, in effect, that the conditions and provisions of such standard policy were binding, and could not be changed or waived, except in the manner indicated, referring to Bourgeois v. N. W. Nat. Ins. Co. supra.
The law of 1891 being void, no decision upon the point here involved was necessary, nor was in fact made in any of such cases. The nearest approach thereto was in Bourgeois v. N. W. Nat. Ins. Co. supra, decided before the invalidity of the law was discovered, which went on the doctrine of waiver, strictly so called, and the effect of the statute in respect thereto.
Straker v. Phenix Ins. Co. 101 Wis. 413, 77 N. W. 752, had to do with a policy issued under the present law, and the effect of knowledge of the agent of acts of the assured during the life of his contract increasing the fire hazard, as regards waiving the condition of the policy rendering the same void in case of any such increase unless permitted by agreement with the company indorsed upon the policy or added thereto. While the standard policy law was referred • to as vital to the question in the case and the decision was largely based on what wras said in Bourgeois v. N. W. Nat. Ins. Co. it is apparent that not only was the turning question governed by the law of waiver, strictly so called, but the decision could not have been different had there been no statutory policy law. The court has never held, in the face of a policy provision forfeiting the contract for a violation of its
"After a careful consideration of the matter we are un-áble to discover any very good reason for holding that it was intended by the legislature, in enacting the standard policy law, to abrogate the judicial rule so firmly established, as above indicated. It is quite apparent that the contrary was intended. In the closing paragraph, sec. 1941 — 62, Stats.. 1898, occurs this significant language, following the dis
“Up to the time of the delivery of the policy to assured, in all transactions relating tp this policy or to the property herein insured, between the assured and any agent of the company, knowledge of the agent shall be knowledge of the company; and in all transactions relating to the subject of insurance, between the insured and any agent of the company after loss, knowledge of the agent shall be knowledge of the company.”
It must be presumed that the word “agent” was there used in the same sense as in sec. 1977. Why was that clause framed so perfectly voicing the foundation principle of the doctrine in Renier v. Dwelling House Ins. Co. and similar cases, if it were intended to abrogate the judicial rule, as we have termed it, as regards estopping the company by occurrences characterizing the making of the contract, or the further rule in respect to estoppel by conduct of the company acting by its’ agent after loss, referred to in Matthews v. Capital F. Ins. Co. supra, and well established in the law of insurance, at the time the policy law was enacted? Oould there have been áüry other purpose than to extend to policy holders, by legislative enactment, the same protection they had theretofore enjoyed when the making of their contracts was wholly under the control of the parties thereto ? What object was there in embodying the clause under consideration in the law at all if it were not to be treated as an exception to that part immediately preceding it, the disability pro-' visions upon which appellant relies ? If the two clauses are not to stand together, the latter being an exception in a sense, to the former, then the latter would seem to be clear surplus-age. The latter clause was not in the policy prepared by the insurance commissioner under the law of 1891, which was in part construed by the court in Bourgeois v. N. W. Nat. Ins. Co. while that part of sec. 1941 — 62 preceding it is a verbatim copy of the commissioner’s form. That circum
If we were to entirely overlook the latter part of the standard policy above discussed, and yet give effect to the judicial rule, as in Renier v. Dwelling House Ins. Co. it would not •seem to violate the disability clause thereof on the subject •of waiver, since, as we have seen, it does not deal with that subject in any proper sense. Such giving effect works no change in the policy, strictly speaking. It only estops the assurer, by reason of its conduct, from successfully alleging that the situation of the subject of insurance is not as indicated therein. In other words, the rule stands guard over the rights of the policy holder, protecting him from loss by reason of the assurer assuming one attitude with knowledge •of all the facts, for the purpose of making a policy contract, and then assuming another and inconsistent attitude to avoid "it. If the doctrine is right independently of the standard policy law, it seems that nothing therein on the subject of waiver condemns it, while in connection with such subject, as we have indicated, there seems to have been an attempt made to make such doctrine a part of the statute. It could not be successfully contended that it was the purpose of the 'legislature to enable insurance companies to profit by what was regarded at the time of its enactment as a fraud, with-" •out some clear, unmistakable language to that effect. Certainly, in the face of plain indications to the contrary, such •a contention can find no favor here.
It is well understood that the judicial rule here discussed "is peculiar to insurance contracts, and significantly exceptional in that it ignores the familiar principle applied to written obligations generally, that he who becomes a party to such an obligation is presumed to have knowledge of its contents and is bound thereby, unless by some artifice resorted
“It is manifest that the theory that such parol evidence, though it may not be competent to change the written contract, may be received for the purpose of raising an estoppel in pais, is a mere invasion of the rule excluding parol testimony when offered to alter a written contract. A party suing on a contract in an action at law must be conclusively presumed to be aware of what the contract contains, and the legal effect of his agreement is that its terms shall be complied with.”
The court said further, in effect, the only exception to. that is where, by fraud, a person is induced to accept a contract different from the one agreed upon, in excusable ignorance of the variance. The exception thus condemned has the-sanction of some forty years of our judicial history and of the general run of authorities. Under the circumstances we do not feel warranted in overturning it or seriously questioning the wisdom of it.
The conclusion to -which we have arrived is supported by the courts generally where a policy law exists. That is amply shown by citations in the brief of counsel for respondent, and the absence of authorities to the contrary in that of appellant, and our own inability to discover any. In the sup
Counsel for appellant cites the Minnesota supreme court as holding contrary to the foregoing in Anderson v. Manchester F. Assur. Co. 59 Minn. 182, 60 N. W. 1095, 63 N. W. 241. We do not so understand that case. Two points were there involved; one being that discussed here, and the other the constitutionality of the standard policy law. Both were at first decided in favor of the company, one justice expressing doubt and favoring a rehearing, and another dissenting particularly on the first point. A reargument was ordered, and on the final disposition of the case the justice who. dissented at first wrote the opinion, by which the decision was rested solely on the unconstitutionality of the law. The other point was entirely omitted from the case.
Appellant’s last point is ruled in favor of respondent by Flatley v. Phenix Ins. Co. 95 Wis. 618, 70 N. W. 828. That is in accordance with the general rule laid down in the textbooks and supported by an abundance of authority, that a re
“The loss shall become payable sixty days after notice and proofs of loss herein required have been received by this company.” Sec. 1941 — 51, Stats. 1898.
The fundamental principle involved is that forfeitures are-not favored and will be held not to have been intended in the-absence of language clearly indicating the contrary. That applies as well to a law as to a contract. So, though in Flatley v. Phenix Ins. Co. the question was raised as regards a contract which at its inception was wholly under the control of the parties thereto, it having been issued before we had a valid policy law, it applies just as strongly in this case. Moreover, the doctrine of the court, as indicated, was in, effect incorporated into the policy.
By the Gov/rt. — The judgment is affirmed.