Bourgeois v. Mutual Fire Insurance

Cassoday, J. The plaintiff, by his agent, applied to Pauley, a local agent of the defendant, for the insurance in question, June 4, 1891. The jury found that at the time of such application the plaintiff’s agent informed Pauley that there was then an incumbrance on the property to the amount of $4,900, and the evidence supports the finding. It further appears from the evidence that at the time of such application the plaintiff’s agent requested Pauley to write the same; that the defendant’s secretary, Hennen, who countersigned the policy in question, being present at the time, at the instance of Pauley wrote the application, and thereupon th,e plaintiff’s agent signed it; that it was therein falsely stated that the property was only incumbered to the amount of $2,000. By the express terms of the policy such false statement would have avoided the same, had not such forfeiture been waived by the facts stated. This court has repeatedly held, in effect, that such action of Pauley and the secretary, with the knowledge of the existence of the incumbrance mentioned, was binding upon the defendant and a waiver of such condition in the policy against such incumbrance. Renier v. Dwelling House Ins. Co. 74 Wis. 94, and cases there cited. As there said : “ Under our statute, whoever solicits insurance on behalf; of any insurance company, or transmits an application to> such company, or a policy to or from such corporation, or' collects or receives any premium for insurance, or in any 406 manner aids or assists in doing either, or in transacting any business for sucb company, must be deemed and held to be an agent of such corporation, to all intents and purposes, in each of the several thmgs mentioned. Sec. 1977, R. S.; Hankins v. Rockford Ins. Co. 70 Wis. 4." 74 Wis. 95. The local agent here having been thus applied to for such insurance and informed of such incumbrance, and having procured the application to be written, as mentioned, and the defendant having finally issued the policy thereon, it cannot disclaim Pauley’s agency in the doing of anything necessarily implied in the specific acts thus authorized. Ibid. It appears from the findings of the jury that in October or December, 1891, Pauley became’ or was the local agent of the Northwesterñ National Insurance Company, and that as such he took the plaintiff’s application for $2,000 additional insurance in the last-named company, and that he then informed the plaintiff that it was unnecessary to notify the defendant of such additional insurance. Accordingly, it so happened that the plaintiff took such additional insurance in the Northwestern National Insurance Company without any knowledge or consent of the defendant otherwise than the knowledge so entertained by Pauley. On the night of February 8 and 9,1892, the property was destroyed by fire. March 14, 1892, th'e defendant notified the plaintiff that it declined to pay the loss by reason of such additional insurance, and also that the policy was canceled for the same reason. The by-laws of the defendant and the policy in question were, in effect, conditioned that such policy should be void in case the plaintiff should procure any additional insurance during the life of the policy, provided, however, that if the assured should, with reasonable diligence, give notice of such additional insurance to the defendant’s secretary, and the company should not elect to cancel the policy by reason thereof, then that its liability should continue. Under this condi 407 tion the taking of the additional insurance, as stated, operated ipso facto as a forfeiture of the policy, unless the same was waived by the company. The contention is that the defendant, by its agent, Pauley, waived such forfeiture by reason of what he said and did at the time of taking such additional insurance in October or December, 1891, as mentioned. Under the by-laws, Pauley was the agent of the defendant in the town. As such his business was to take applications and receive premiums, either in cash or premium notes, and deliver the same to the company. For each application and each renewal taken by him he was allowed, as a fee, one dollar in case the same' was accepted by the company; otherwise, nothing; and no application or renewal so taken was binding on the company until approved by the secretary. Such were his relations to the defendant. While he was the agent of the defendant in procuring the policy here- sued upon, yet he ceased to be such agent as to that policy immediately on the completion of that contract. Expressions may be found in some of the adjudications of this court, when not limited by the facts of the particular case being considered and the points decided therein, authorizing a contrary inference; but the authority of a decision is necessarily limited to .the points .actually decided. This court has repeatedly held that such local agent,, under the section of the statute cited, is, after all, limited to the act of. the particular person in doing one or more of the things specifically designated therein. This contract of insurance was complete in all its terms and binding upon both parties at the time of the delivery of the policy. The plaintiff, as a member of the defendant company, accepted the policy with all the condition^ and limitations contained in the charter, the by-laws, and the policy. In the absence of any fraud or mistake he was, on general principles, conclusively presumed to know their contents. Knowing their contents, the plaintiff must in 408 law be deemed to have understood that Pauley, as such' mere town agent, had no authority, three months after the-making of the contract, to waive the conditions therein contained. Hankins v. Rockford Ins. Co. 70 Wis. 4; Knudson v. Hekla F. Ins. Co. 75 Wis. 198; Bosworth v. Merchants' F. Ins. Co. 80 Wis. 398; Stevens v. Queen Ins. Co. 81 Wis. 335. By the Court.- — The judgment of the circuit court is affirmed.