Hankins v. Rockford Ins. Co. of Rockford, Ill.

• Citation: 70 Wis. 1,35 N.W. 34
• Parties: HANKINS v. ROCKFORD INS. CO. OF ROCKFORD, ILL.
• Decision Date: 01 November 1887
• Court: United States State Supreme Court of Wisconsin

70 Wis. 1

35 N.W. 34

HANKINS

v.ROCKFORD INS. CO. OF ROCKFORD, ILL.

Supreme Court of Wisconsin.

November 1, 1887.

Appeal from circuit court, Richland county.

This action is upon a policy of insurance issued by the defendant to the plaintiff, June 10, 1885, wherein and whereby the defendant, in effect, agreed to make good all such immediate loss or damage as might be sustained by the plaintiff by fire and lightning to the building and property therein specified, not exceeding the sum insured, from June 10, 1885, to June 10, 1890, and containing this clause: “Loss, if any, payable to Mrs. Emma Pease, as her interest may appear, as mortgagee;” and also a clause to the effect that if any of the property thereby insured should thereafter become mortgaged, or in any manner incumbered, “without the consent of the secretary in writing,” then and in every such case said policy shall become void. The policy also contained this clause: “It is expressly provided that no officer, agent, or employe, or any person or persons, except the secretary, in writing, can in any manner waive either or any of the conditions of this policy, which is made and accepted upon the above express conditions.” The Pease mortgage appears to have been paid and discharged July 14, 1885. October 8, 1886, the building so insured was, without the fault of the plaintiff, totally destroyed by fire. This action was commenced February 28, 1887. Among the defenses relied upon is that March 24, 1886, and contrary to a clause of the policy above mentioned, and without any such waiver thereof, the plaintiff and his wife executed and delivered to one James a mortgage upon the premises insured, to secure the payment of the sum of $62.50; which mortgage was thereuponduly recorded, and continued to be a valid and subsisting lien and incumbrance upon said premises insured from the date thereof, until long after the said building had been consumed by fire, and the loss of the plaintiff thereby incurred. A motion for a nonsuit having been overruled, the jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant brings this appeal.

L. H. Bancroft, for respondent.

H. W. Chynoweth, for appellant.

CASSODAY, J.

The mere fact that the mortgage to Pease, mentioned in the policy, had been paid and discharged, did not authorize the plaintiff to place another mortgage running to a different party upon the premises insured, in violation of the conditions of the policy above mentioned. Such conditions in policies “are to secure risks in which there shall be no motive for intentional or dishonest loss.” Redmon v. Insurance Co., 51 Wis. 301, 8 N. W. Rep. 226. True, the mortgage here is small, but to hold that the plaintiff had the right to put it upon the premises in contravention of the agreement, without jeopardizing the risk, would be to establish a rule which would authorize a large mortgage with the same impunity. The question was submitted to the jury whether the plaintiff procured the consent of the local agent to the placing of that mortgage upon the premises, with the instruction that, if he did, it “would be a waiver of the company of this special clause in the policy.” The jury necessarily found that the plaintiff did procure such consent, and hence that there was such waiver. It is urged that a local agent for an insurance company is an agent for such company for all purposes, under section 1977, Rev. St. Expressions may be found, when not limited by the facts of the particular case being considered, authorizing such an inference. But the authority of a decision is necessarily limited to the points decided. True, that section declares that “whoever” does one of the several things therein mentioned, “shall be held an agent of such corporation to all intents and purposes;” but such agency, after all, is limited to the act of the particular person in doing one or more of the things thus specifically designated. In that sense “the word agent, whenever used” in chapter 89, Rev. St., is to “be construed to include all such persons.” Id. In other words, whenever an insurance company authorizes any person to do any one of the things thus specified, it cannot disclaim the agency of such person in the doing of anything necessarily implied in the specific act thus authorized. Thus it has been frequently held, by this and other courts, in effect, that where a person was authorized by an insurance company to make a contract of insurance, he thereby had implied authority in doing so to waive stipulations as to the condition of the property, or other facts then existing; and it may be as to subsequent conditions, if such waiver is made at the time of effecting the insurance. But those cases have no bearing upon the question here presented. This contract of insurance was completed in all of its terms, and binding upon both parties, June 10, 1885. The plaintiff accepted it with all its conditions and limitations. In the absence of any fraud or mistake, he was, on general principles, conclusively presumed to know its contents. Herbst v Lowe, 65 Wis. 321, 26 N W. Rep. 751;Brown v. Insurance Co., 59 N. H. 298. Thus it appears that the policy was “made and accepted” by the plaintiff with knowledge in law of its contents, “upon the above express conditions,” to the effect that no local agent, at least, “can in any manner waive either or any of the conditions of this policy.” With this policy in his possession, and more than nine months after the contract of insurance had been thus completed, the plaintiff, according to his testimony, requested the local agent to allow him permission, notwithstanding the conditions of the policy, to place the mortgage upon the premises, and claims that such agent answered: “It is all...