Goss v. Agricultural Insurance Co. of Watertown

Pinkbt, J. . The plaintiff was not injured or prejudiced by the order striking out the portions of the complaint above referred to. The remaining allegations were sufficient to show that the defendant’s agent, at the time the policy was 236 issued, knew the facts as to the plaintiff’s title to the lots on which the buildings insured stood; that she had only an estate for years, and not a title in fee simple; and that he waived the conditions avoiding the policy on the ground that her title was not in fee simple. This waiver was effective. Renier v. Dwelling House Ins. Co. 74 Wis. 89; Carey v. German Am. Ins. Co. 84 Wis. 89, 90; Bourgeois v. Mut. F. Ins. Co. 86 Wis. 402; Dowling v. Lancashire Ins. Co., ante, p. 63. The provisions of ch.195, Laws of 1891, authorizing the state insurance commissioner to prepare, approve, and adopt a standard policy of fire insurance, as therein stated, having been declared unconstitutional and void, the provision of the policy in question requiring the waiver of the condition relied upon to be by agreement indorsed on the policy or added thereto was not binding on the plaintiff; but the rule as to ' waiver of such or similar conditions remained as before the statute, and as declared in the cases above- cited. Dowling v. Lancashire Ins. Co., supra. It follows, therefore, that the order striking out portions of the complaint was not erroneous, but that the order sustaining the defendant’s demurrer was erroneous. By the Court.— The order of the circuit court striking out portions of the plaintiff’s complaint is affirmed. The order sustaining the defendant’s demurrer is reversed, and the cause is remanded for further proceedings according to law.