Wicks Bros. v. Scottish Union & National Insurance

Babdbeh, J. The policy in question was in the form required by the laws of this state. It contained a provision that “ this policy shall be canceled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation.” It is not claimed that there has been any cancellation under the terms of the policy. The argument is, however, that when the policy was delivered to the plaintiff’s agent by the Rogers-Ruger Company the latter’s agency terminated; that by force of the statute (sec. 1977, Stats. 1898) the Rogers-Ruger Company was the agent of the defendant; and that the surrender of the policy to it by McRean was a surrender to defendant, and the policy became canceled or of no effect when he mailed his letter on the forenoon of May 13th. There can be no doubt of the fact that the parties to an-insurance contract may agree upon terms of cancellation different from those stipulated in the policy. Ostrander, Fire Ins. § 19. The trouble with the argument here is that there is no proof of any such agreement, and no proof of any facts from which such an agreement is properly infer-able. The telegram from the home office to Culver & Harper was: “Please cancel seven naught eight; Wicks portable sawmill; undesirable.” There is no suggestion that it should be canceled in any other way except under the terms of the policy. The agents telephoned Rogers-Ruger Company that it had been ordered canceled. The company wrote McBean to the same effect, and requested a return of the policy. [609] Still no suggestion that there was to be any departure from the policy requirements. Without any notice that any different plan was to be pursued than was prescribed by the contract, McBean sent the policy to the Rogers-Ruger Company. Under these circumstances, he had a right to rely upon the assumption that it would be canceled in the regular way, unless we can find something in the case from which-an intention to surrender for short cancellation can be inferred. We are satisfied that the- case is barren of facts to support any such inference. It is admitted that when the insurance was effected the Rogers-Ruger Company was agent of the plaintiff. It may also be admitted that by virtue of the statute it was also agent of the defendant, acting, in a measure, in a double capacity. John R. Davis L. Co. v. Hartford F. Ins. Co. 95 Wis. 226. The two relations were not inconsistent, and, upon delivery and acceptance of the policy, such relationship became terminated. The transaction was closed, because the purposes of the agency had, been satisfied. This was the situation when the defendant ordered the policy canceled. Its agents notified the Rogers-Ruger Company of the fact, and, so far as the proof shows, the latter volunteered to send and get the policy. There was no request that this should be done, or authority given in any way to represent the defendant. At that time the Rogers-Ruger Company had an interest in the sawmill arising from the fact that the lessees were sawing their logs. Unless it could be kept insured, the mill could have been sold at any time. So, when they wrote McBean that the defendant had ordered the policy canceled, they also notified him that they .would endeavor to secure other insurance. ITis answer thereto is a tacit acceptance of their offer, for he said: “ If we cannot carry insurance, I do not think it is right to allow the matter to stand as it is.” If the company was still to represent him in the matter of securing other [610] insurance, the return of the policy to it was certainly consistent with the idea that they should, hold the policy for him until the time limited for cancellation had expired. In absence of proof of express notice that the defendant desired to vary the stipulation for cancellation, the inference arising from the conduct of the parties points strongly toward this conclusion. The risk was undesirable, and it was difficult to secure insurance. The assumption that it was McBean’s intention to assent to immediate cancellation does violence to his business judgment. He is presumed to know of plaintiff’s rights under the policy, and, under the circumstances, it is quite reasonable to assume that by sending the policy to them he intended nothing more than that they should hold it for cancellation under its terms. There is a lack of any circumstance tending to show an intention to surrender for instant cancellation. Every probability tends the other way. Moreover, the circumstances are deemed sufficient to £$how that the company was continuing to act as the agent of the plaintiff in the matter as before, and, even if it be admitted that it was also defendant’s agent, the absence of any showing of an intention to consent to immediate cancellation is fatal to the defendant’s contention. Without such showing the acts of plaintiff’s agent must be construed as being in harmony with a continuance of the insurance contract until canceled pursuant to its terms. The right of cancellation does not exist at all except by contract, and stipulations to that effect are construed with reasonable strictness. The effort to bring the situation within the cases of Walters v. St. Joseph F. & M. Ins. Co. 39 Wis. 489, and Bingham v. Ins. Co. 74 Wis. 498, must fail because of the marked difference in the terms of the policies. In both of these cases the policies provided that they might be canceled at cutvy time by the company on refunding or tendering to the assured a ratable proportion of the premium for the time unexpired. [611] The circumstances clearly showed that the policies were surrendered with the intention of canceling the insurance. Uo further discussion of the case is deemed necessary. ■ By the Oourt.— The judgment of the circuit courtis affirmed. Oassoday, O. J., took no part.