McFetridge v. Phenix Insurance

Cassoday, J. It is undisputed that at the time of making the contract of insurance the plaintiff was in partnership with Scott and Smith, mentioned in the foregoing statement; that the firm then owned the property so insured, and each had an interest therein; that Hugh Martin acted as and was the agent of the defendant in making the contract of insurance and in countersigning the policy and issuing the same to the plaintiff. It is contended that it was competent for the plaintiff, as one of the partners, to insure the property in his individual name. Assuming that one of a firm may insure in his own name, yet we are constrained to hold that he cannot, under a policy like the one in question, insure firm property as his own, in his own name, and without the knowledge of the company. It follows that the interests of Scott and Smith in the property insured operated as. a breach of one of the conditions of the policy mentioned in said statement, and must avoid the same, unless it was known to and waived by Martin in making the contract of insurance. It is contended that in making such contract Martin had such knowledge and waived such condition. The testimony of the plaintiff is certainly to that effect. While Martin concedes that in making the contract the plaintiff said something about having partners in the ice business in their trade, delivering ice in the city, yet he testified to the effect [204] that he asked the plaintiff who owned the building, and told him that he regarded it as his duty, as agent, to know fully who owned the property, because the contract of insurance would be invalid if not properly written; and the plaintiff replied: “ I am the owner of the building. The lease is in my name, and I am the owner of the building.” We must hold that it was error to take such question of waiver from the jury. It is contended that, after the defendant or its agents had knowledge of the breaches of the conditions in the policy, further proofs were demanded, and that the defendant thereby waived such breaches; but such contention is not conceded nor established by the undisputed evidence. The most that Martin concedes is that he informed the plaintiff that he wanted to ascertain the facts, and sought to do so. The most that appears from the plaintifE’s testimony in respect to such waiver by the defendant’s adjuster, Ostrander, is to the effect that he handed him the proofs of loss, and he looked them over and “ said there was no builder’s estimate in the proofs of lossthat he told him he would get one as quick as possible; that Ostrander then refused to remain in his office any length of time, or state when the plaintiff could find him there; that he then sought to obtain such builder’s estimate, but was unable to do so; that he then took such proofs of loss, without such estimate, back to Ostrander’s office, but that he refused to receive them; that he left the proofs of loss in that office, and told Ostrander he would get a builder’s estimate as soon as possible; that on Tuesday of the following week Ostrander told him he would not receive a builder’s estimate, as it was after the time, and that he would not pay the loss on those grounds,— on the ground that there was no builder’s estimate. We must hold that such waiver was not established by the undisputed evidence. Cannon v. Home Ins. [205] Co. 53 Wis. 585; Renier v. Dwelling House Ins. Co. 74 Wis. 96. On the subject of an undivided interest in property as full or complete ownership for the purpose of insurance, see the note to Beebe v. Ohio Farmers’ Ins. Oo. (Mich.), 18 L. R. A. 481.— Rep. By the Court. — The judgment of the circuit court is'reversed, and the cause is remanded for a new trial.