Shafer v. Phœnix Insurance Co.

Cole, C. J. It would be laborious and unprofitable to notice at length the many exceptions relied on by the learned counsel for the defendant to reverse this judgment. Many of the questions discussed by him have already been considered by this court and decided. Of course this court would not reverse a judgment because the trial court permitted the plaintiffs to call a witness to show their respective interests in the insured property after a motion for a nonsuit had been made and denied.. That was a matter resting in the discretion of the court below, which this court will not review. The remark which the circuit judge made, to the effect that while counsel requested, as was his right, that the jury should find a special verdict, he could see no necessity for one, could not possibly have prejudiced the defendant. The court did submit certain questions for the jury to answer. These questions seem to cover the controverted issues of fact arising upon the pleadings. The real defense in the case was based on the ground that the policy was avoided, or did not take effect, in consequence of the recovery of the-Sweet and Stevens judgments against the assured, and by the decree of foreclosure of the Bray mortgage. These judgments were entered up in the months of May and June, 1879; the policy was renewed on the third — 367 — of October .following. There was a clause in the policy to the effect that if the insured property should be sold or transferred, or foreclosure proceedings be commenced upon a mortgage against it, or a judgment lien should exist upon it, or in case of “ the issuing'or levy of an execution without actual possession against any kind of property hereby insured, or if the property insured be assigned under any bankrupt or insolvent law, or any change take place in the title,” etc., in every such case the policy should be void. And the important question litigated was, whether the defendant’s agent, who renewed its policy, had such notice or knowledge of the existence of these judgments and of the commencement of the foreclosure proceedings as would charge the company and amount to a waiver of the condition of the policy. The jury distinctly found, in answer to direct questions submitted, that the company had knowledge, when the policy was renewed, of the existence of the judgments, and of the commencement of the proceedings, and the decree, in the foreclosure suit. It is, however, objected that the verdict of the jury on these points is contrary to the evidence — so much so in respect to some questions as to be perverse. But, as we understand the testimony in the bill of exceptions, there is evidence which supports the verdict. It is clearly not the province of this court to decide upon the weight of testimony, or to say which statement of the witnesses, there being a conflict, should be believed. That is essentially the province of the jury. It is doubtless the duty of this court to examine the' evidence sufficiently to ascertain whether there was testimony which warranted the conclusion the jury drew from it. On that point we have no hesitation in saying there was ample testimony to. sustain the result at which the jury arrived. The fact cannot be well denied that Caswell, the agent, lived in Omro, where the assured resided. He had acted for some time as agent for insurance companies which had policies on the building destroyed, including the defendant. As agent he issued the — 368 — defendant’s policy and renewed it. He had full authority to make contracts of insurance and bind his principals. About this no question is made. Now, there is certainly evidence which tends to prove that Caswell learned, from conversations which he had with the assured some time prior to the renewal, all about the recovery of the Sweet and Stevens judgments, the commencement of the suit to foreclose the Bray mortgage, and the entry of judgment therein. As there was evidence to show that Caswell had full knowledge of these facts when he renewed the policy, the jury were justified in finding that his knowledge on these matters was the knowledge of the defendant, and binding upon it. But it is said and claimed that, in order to charge the defendant with a knowledge of these facts, the agent must have been acting for it at the time he learned about them; in other words, that, unless the agent acquired that knowledge in his capacity as agent of the defendant, and while engaged in the transaction of its business, the company was not bound by it. We see no reason for thus restricting the rule. If the agent, when he renewed the policy, had not forgotten the information which he had received from the assured on these subjects,— if he had in his mind these facts concerning the risk, and knew of the existence of the judgments and of the foreclosure suit,— why should this not be deemed sufficient and equivalent to a notice to the defendant of the same things? If the agent knew the facts when he was called upon to act for his principal in the matter, that is all we consider necessary. There is no hardship in imputing such knowledge of the agent to the principal. This rule excludes all rumors or loose information, coming to the knowledge of the agent, which he is not bound to charge his mind with. Of course, if the agent of the company had knowledge of these facts when he renewed the policy, this would amount to a waiver of the conditions. Miner v. Ins. Co., 27 Wis., 693; McBride v. Ins. Co., 30 Wis., 567; Devine v. Ins. Co., 32 Wis., 476; Webster v. Ins. Co., 36 Wis., 67; Winans v. — 369 — Ins. Co., 38 Wis., 342; Mechler v. Ins. Co., id., 665; Roberts v. Ins. Co., 41 Wis., 327; Gans v. Ins. Co., 43 Wis., 113; Palmer v. Ins. Co., 44 Wis., 206. There was a clause in the policy to the effect that, in case there should he any change in the risk, either within itself or by neighboring buildings, at the time of the renewal, the renewal should be void; also that, whenever the policy should become void for any cause, it should not be revived or reinstated by the issue of any renewal receipt, or in any other w.ay except by special contract for such reinstating in writing thereon, or by the issuing of a new policy. But it was competent for the agent, acting in behalf of the defendant, to waive these as well as other conditions of the policy. Certainly the company, after having pretended to renew the policy, especially after having received the premium, could not say that no contract of insurance had been made which was binding upon it. It would be estopped from making any such defense upon the clearest principles of law and morals. There is a still further clause which requires a word of comment. It is the one which provides that the policy shall be avoided on “ the issue or levy of an execution, without actual possession, against any kind of property hereby insured.” It appears that there was an execution issued on the Sweet judgment, which was returned on the 23d of September, 1879, satisfied in part. On the same day an alias execution was issued, which was returned a few days after the fire, satisfied as to §100. The jury found that the defendant had knowledge, at the date of the renewal of the policy, of the issuing of an execution on this judgment. It is objected that there was no evidence whatever to sustain that finding; and for the purposes of the case we assume that there wTas none. But still we think the clause in question was not intended to apply to real estate. The language would seem to repel such an application. It refers to an issue or levy of an execution “ without actual possession,” which clearly implies that the execution — 370 — was against property where actual possession might be taken by the officer under the writ. Properly speaking, there is no actual possession of real estate taken by the officer on levy of an execution upon it. The possession remains in the judgment debtor until the deed is given. In the words of Reynolds, C., in Colt v. Phœnix Fire Ins. Co. 54 N. Y., 595-8, where a similar clause was considered, “ the levy of an execution upon real estate under an ordinary judgment is at this day unnecessary, and in fact never is done, and it may be said is now unknown to the law.” In that case the court decided that the clause did not apply to real estate, but to the levy of an execution upon personal property only, where the actual levy by the sheriff divests the personal property of the debtor, to a large extent at least, and the sheriff takes and retains possession until sale. We think that must be the construction of the clause in question, though it must be confessed it is very difficult to give it any intelligent interpretation. It will be noticed that it first provides that an issue of an execution against the insured property shall avoid the policy; then, in the disjunctive, that a “ levy,” etc., shall have the same effect. Now, if the issue of an execution terminated the policy, what earthly object could there be in providing that a levy of an execution should do so? It is evident that in no case could there be a levy until after the execution was issued. The latter act put-an end to the policy without levy. The whole condition is so framed or expressed that it is impossible to tell to what some of the clauses relate. The policy is avoided if the insured property “ be sold or transferred,” or “ upon the commencement of foreclosure proceedings against,” or “ a sale under a deed of.” What do the words “ sale under a deed of ” mean in this connection ? Do they refer to a sale under a deed of trust, or what do they mean ? Where the condition is relied on as'working a forfeiture on its breach, we say, in the language of Mr. Wood, “ it is the duty of the insurer to clothe the contract in language so plain and clear that the in — 371 — sured cannot be mistaken or misled as to the burdens or duties thereby imposed upon him. Having the power to impose conditions, and being the party who draws the contract, he must see to it that all conditions are plain, easily understood, and free from ambiguity.” Wood on Ins., § 59. Some of the clauses in the condition in question are framed in such an awkward and unintelligible manner that it is difficult to tell what they mean. There is no excuse or justification for framing conditions in this way, and the practice ought not to be tolerated. The judgment in the record is dated December 29, 1880, which was before the motion for a new trial was decided. The judgment is marked as filed March 10,1881, which was doubt* less the day the judgment was. entered of record. Interest was given on the verdict to March 10, 1881. How, it is said the plaintiffs may claim and attempt to collect interest from the date of the judgment, and thus obtain double interest for two months and eleven days.- But, if the plaintiffs should attempt to do this, it would be in the power of the circuit court, on motion, to correct the error. We cannot assume, as the record stands, that the plaintiffs will claim any excess of interest. The judgment of the circuit court, we think, is right, and must be affirmed. By the Court.— Judgment affirmed.