Bourgeois v. Nw. Nat. Ins. Co.
| Decision Date | 29 December 1893 |
| Citation | 57 N.W. 347,86 Wis. 606 |
| Parties | BOURGEOIS v. NORTHWESTERN NAT. INS. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.
Action by Mathias Bourgeois against the Northwestern National Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant appeals. Reversed.
The other facts fully appear in the following statement by WINSLOW, J.:
Action upon an insurance policy of $2,000 upon plaintiff's dwelling house and furniture therein. The policy was issued December 16, 1891, upon an application dated December 14, 1891, and was what is known as the “Wisconsin Standard Policy,” prepared by the state insurance commissioner, under chapter 195, Laws 1891. It contained the following condition: “This entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” In January, 1892, the insured effected $2,000 additional insurance upon the same property in another company. The insured property was totally destroyed by fire, February 8, 1892. Upon the trial a special verdict was had, and the jury found in response to an appropriate question that the defendant's local agent was informed, at the time the application for the insurance in question was made, that the plaintiff would take out $2,000 additional insurance upon the house, and that he consented thereto. This consent was by parol, and was the only consent proven or relied on by the plaintiff. The defendant appeals from judgment for the plaintiff on the verdict.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.
Maurice McKenna, for respondent.
WINSLOW, J., (after stating the facts).
Although other questions are presented by the record, the single question indicated in the foregoing statement of facts is all that we find it necessary to consider. That question is whether the local agent, at the time the application for insurance is made, may effectually waive by parol the clause prohibiting future additional insurance, the policy containing such clause being afterwards accepted and held by the insured. There are numerous cases in this court holding that the local agent has implied authority, while making the contract of insurance, to waive stipulations or conditions inconsistent with facts then existing; at least, that he had such power prior to the passage of chapter 195, Laws 1891. It has also been intimated that such a waiver might be made as to conditions prohibiting future acts or defaults. Schomer v. Insurance Co., 50 Wis. 575-580, 7 N. W. 544;Hankins v. Insurance Co., 70 Wis. 1-5, 35 N. W. 34. One serious objection to holding such an attempted waiver effectual as to future conduct is well stated in the opinion in the Schomer Case, as follows: “Where the policy itself, as in the case before us, only permits other insurance to a given amount, all negotiations of the parties upon that subject must be deemed to be merged in the written contract.” However, the question whether such a waiver of conditions as to future conduct could be effectual was not presented either in the Schomer Case or in the Hankins Case, and cannot therefore be said to have been decided. It may be said, and with some force, that in the case of Stanhilber v. Insurance Co., 76 Wis. 292, 45 N. W. 221, a waiver by the local agent of a condition as to future conduct was held effectual, but there were other facts present in that case, and we do not regard it as an adjudication in the affirmative of the proposition now before us. The question, therefore, must be considered as still open. In the absence of legislative action on the subject, it would certainly be a most interesting question, and one not free from doubt. The objection to an affirmative answer, suggested in the Schomer Case, is certainly a cogent one. Insurance Co. v. Maxson, 42 Ill. App. 164. However, there has been legislative action which, in our judgment, has an important bearing on the question, and which must be considered. In 1891 an act was passed by our legislature providing for an uniform policy of insurance to be used in this state, known as the “Standard Insurance Policy.” Chapter 195, Laws 1891. This act went into effect September 1, 1891. The policy in suit here was the standard policy provided for by that act, was issued December 16, 1891, and consequently must be...
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