198 Wis. 561 | Wis. | 1929
The only question presented by this appeal is whether the insurance corporation is liable to pay the judgment in this case. The defendants Wonser did not appeal and therefore do not question their liability. The issue presented is whether the defendants Wonser were insured by the defendant corporation at the time that the accident happened, and that in turn depends upon the question whether Mr. Kamps was the agent of the defendant corporation at the time that the policy here in question was written and the premium, collected.
1. Sec. 209.05, Stats., provides that “Every person . . . who solicits insurance on behalf of any insurance corporation or person desiring insurance of any kind, or transmits an application for a policy of insurance, other than for himself, to or from any such corporation, ... 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.”
There is no proof of an express agreement to pay Mr. Kamps compensation for his services, but the proof is undisputed that a commission had always been paid to him for soliciting insurance for other agents. The proof also establishes that when, four or five years before this time, he did solicit insurance for the agents who wrote this policy, they paid a commission to Mr. Kamps for the business which he procured for them. So that he would not only be entitled to commission under this uniform custom of insurance agents, but he actually had in his pocket the premium from which such commission would be paid.
But it may be said that it is unreasonable to make the de
2. Nor is the liability of the defendant corporation for the acts of Mr. Kamps imposed upon it by sec. 209.05 of the Statutes limited in any way by sec. 209.04, which requires that all insurance agents shall procure a certificate of authority from the company which they represent and imposes a penalty by way of a fine upon those who do not secure such certificates.
The statutes which, after repeated amendments, became secs. 209.04 and 209.05 of the Statutes, were first enacted by the legislature of 1870. They both appear in a form which is somewhat similar to the present statutes as a part of the same legislative act in ch. 13, Laws of 1871, and ch. 240, Laws of 1880.
Neither in these original statutes nor in any subsequent amendment thereof down to and including the present statutes is there any indication of a legislative intent that the insurance carrier shall be relieved of liability for the acts of those who are made its agents by the provisions of sec. 209.05, because of the fact that such agents have not procured a certificate of authority as required by sec. 209.04. To hold that such was the effect of sec. 209.04 would render sec. 209.05 nugatory and of no effect whatever, because this later section could never be given effect if no one could be held to be the agent of the insurance carrier under sec. 209.05 unless he had in fact secured a certificate of authority from the insurance corporation under sec. 209.04.
3. Even if Mr. Kamps could be considered the agent of the insured for the purpose of procuring the policy, as appellant contends, that would not relieve the defendant corporation of liability because sec. 209.05 makes the solicitor the agent of the company regardless of whether he solicits insurance “on behalf of any insurance corporation or person desiring insurance.” Under this statute “a person who delivers the policy and receives the premium, though acting as a broker, is also agent for the company.” Welch v. Fire Asso. 120 Wis. 456, 461, 98 N. W. 227. “An insurance agent may be the agent of the assured in procuring insurance if his duties as such agent do not conflict with his duties as agent of the insurance company, under sec. 1977, Stats. 1898 [now sec. 209.05]; but when a conflict of duties arises, his authority to act for the assured must yield to that imposed by this statute.” Wis. Cent. R. Co. v. Phœnix Ins. Co. 123 Wis. 313, 316, 101 N. W. 703.
4. If Mr. Kamps took the policy without authority from the local agent who wrote it, the defendant corporation,
5. The attempted cancellation of the policy was not effective, because there was no tender or return of the unearned premium which the insured had paid to Mr. Kamps while he was acting as agent for the defendant corporation.
6. There is nothing in the conduct of the insured after the agents refused to return the policy to him that prevents him from enforcing liability on the policy. When he found that Mr. Kamps would neither pay the premium to the agents who wrote the policy nor procure the return of the policy, he attempted to collect the premium from Mr. Kamps through his attorneys and by consultation with the district attorney. . Apparently his purpose was to procure the money in order that he might pay the premium to the agents who wrote the policy, for he secured no other protection than that given by this policy. Nothing that he did in this matter worked any prejudice to the rights of the defendant corporation.
7. The policy required that the insured give immediate written notice to the defendant corporation or its authorized agents of the occurrence of any accident covered by the policy. At the time of the accident the policy was not in the possession of the insured. It had been retained by the agents who wrote it after they procured it by representing that they desired to make a correction therein. The attorneys for the insured notified these agents verbally of the happening of the accident shortly after its occurrence. They tried to secure from these agents the name of the defendant corporation in order that written notice might be given as the policy required, but the agents, refused to disclose the name of the defendant corporation until they were directed to do so by the commissioner of insurance. When an insured is prevented from giving the notice required by the
Moreover, the requirement for the giving of immediate notice “is contrary to the provisions of the statute [sec. 204.29] and therefore inoperative and of no effect.” Corwin v. Salter, 194 Wis. 333, 337, 216 N. W. 653.
The case presented is one where the insured in good faith did all-that he could do to secure protection. It is one where there could be no question about the liability of the defendant corporation were it not for the unwarranted refusal to pay over the premium on the part of one who is made the agent of the defendant corporation by force of a statute passed to meet just such situations as that here presented. The case comes clearly within the provisions of that statute.
By the Court. — Judgment affirmed.