John R. Davis Lumber Co. v. Hartford Fire Ins. Co.

• Decision Date: 02 February 1897
• Citation: 95 Wis. 226,70 N.W. 84
• Parties: JOHN R. DAVIS LUMBER CO. v. HARTFORD FIRE INS. CO. ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 226

70 N.W. 84

JOHN R. DAVIS LUMBER CO.

v.HARTFORD FIRE INS. CO. ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Cross appeals from circuit court, Winnebago county; George W. Burnell, Judge.

Action by the John R. Davis Lumber Company against the Hartford Fire Insurance Company and others. From the judgment rendered, all the parties appeal. Modified.

Action to recover on several policies of insurance against loss by fire. The Hartford Fire Insurance Company, of Hartford, Conn., the National Fire Insurance Company, of Hartford, Conn., and the Phœnix Assurance Company, of London, England, each issued one of such policies, for $5,000, through its agents, Sunderland & Ostrander, at West Superior, Wis., June 10, 1893, and each of such companies made one of such policies for $5,000, through its agents, Robert Shields & Son, at Neenah, Wis. The pleadings raised the disputed questions covered by the findings of fact, and such requests to find as are referred to in this statement and the opinion following. The case was tried by the court, and resulted in findings of fact, in substance, as follows: (1) Plaintiff, in June, 1894, had a large lumber manufacturing plant at Phillips, Wis., upon which it carried insurance on the co-operative plan, to the extent of about $182,000. (2) Defendants' agents at West Superior, Wis., also their agents at Neenah, Wis., had general authority to issue and cancel policies, receive and give notice of cancellation of the same, under the rules and regulations of the defendants, but they were not permitted to issue double lines; that is, one agent was not permitted to issue a policy on property covered by a policy issued from the other agent in the same company. (3) H. Winchester was an insurance agent at Phillips, Wis., during all the time mentioned in the findings, but not the agent for the defendants. For several years he had written what insurance he could in companies represented by him, on plaintiff's property, and was permitted by it to obtain insurance on such property in other companies. Such insurance, written or procured by him, amounted to about 80 per cent. of that carried on the property. (4) All policies obtained by Winchester were subject to plaintiff's approval. (5) During the time Winchester obtained insurance on plaintiff's property as aforesaid, it also obtained some insurance through other agencies. (6) There was no agreement between plaintiff and Winchester that the latter should control all the insurance. (7) Winchester kept a running account of premiums with plaintiff, and was paid from time to time as he desired. (8) About October 9, 1894, Winchester obtained a $5,000 policy in each of the companies named, at their West Superior agency, and agreed with Sunderland & Ostrander, the agents, that there should be but one line of policies issued by defendants on plaintiff's property, taken by him; that plaintiff was not informed of such agreement till after the first fire hereafter mentioned. (9) June 5, 1894, the president of the plaintiff ordered Shields & Son, agents for defendants at Neenah, to issue a $5,000 policy in each of the companies. Such agents had carried that amount of insurance upon the property in the same companies for some time, and the order given was for renewals. The policies so ordered were not delivered or paid for till June 20, 1894. (10) At the time the order last mentioned was given, plaintiff's officers did not know that Winchester was about to procure insurance in the same companies, of Sunderland & Ostrander; neither did they have such knowledge till after the first fire hereafter mentioned. (11) Soon after the policies were issued, defendants, through the daily reports sent by their agents, were informed that two lines of policies had been issued, and immediately gave notice to such agents that one line must be canceled; and thereupon such agents corresponded with the company regarding such cancellation, till after June 19, 1894. (12) Plaintiff did not know of the controversy mentioned in No. 11 till after June 19, 1894, at which date a fire occurred which partially destroyed the property covered by the policies. (13) July 7th, Sunderland & Ostrander telegraphed Winchester to cancel the policies issued from that agency; that no claim would be made for premium, and none would be accepted. The telegram containing such notice was read to plaintiff's secretary, B. W. Davis, at the office of the plaintiff. Winchester replied to the telegram that the policies had been charged to plaintiff; that, when canceled, it would be pro rata on items not affected by the fire; and that a draft for the amount due would be sent when canceled. On July 17th, defendants tendered to the plaintiff the full amount of premiums on the policies, and demanded their surrender, which was refused. July 23d, thereafter, plaintiff paid to Winchester the premiums on the policies, and he immediately sent the same by a draft, including premiums on other policies, to Sunderland & Ostrander. (14) July 27th, the remaining portion of the property covered by the policies was destroyed; and on August 11th, thereafter, Sunderland & Ostrander returned the draft sent as aforesaid, to Winchester, at Phillips, and the amount was duly tendered back to plaintiff, and refused. (15) June 23, 1894, Shields & Son telegraphed plaintiff that the policies issued by them were canceled, subject to loss, and to return the same. On June 24th, defendants tendered the full amount of the premium on such policies to the plaintiff, and demanded their surrender, which was refused. July 22d, the tender and demand were repeated, and again refused, plaintiff offering on both occasions to surrender the policies subject to the loss of June 19th, on payment of the unearned premium. (16) On July 7th, also July 10th, defendants notified plaintiff that the tender of July 2d would be kept good, and the policies treated as void Defendants, after June 19th, insisted upon re calling the policies issued at the Neenah agency and treating the same as unauthorized and void As conclusions of law, the court found, in substance: (1) That Winchester was the agent of plaintiff to procure insurance subject to plaintiff's approval, and possessed no other authority. (2) That defendants waived the right to insist upon a cancellation of the policies issued at the West Superior agency, by collecting the premiums thereon July 23d; and that plaintiff was entitled to a judgment on each of such policies on account of the first fire, of $1,090.88, with interest thereon at the rate of 6 per cent. per annum from September 19, 1894, and $3,576.49, with interest thereon at the same rate from the 17th day of November, 1894, on account of the second fire. (3) That the policies issued at the Neenah agency were in force June 19, 1894, and plaintiff entitled to recover on each $1,090.88, with interest thereon at the rate of 6 per cent. per annum from the 19th day of September, 1894, on account of the first fire. (4) That the policies issued at the Neenah agency were duly canceled July 2d, 1894. Several requests to find were refused. Exceptions were filed, sufficient to present the questions discussed in the opinion. Judgment was rendered in plaintiff's favor against each of the defendants, according to the findings and conclusions, from which judgments plaintiff appealed, upon the ground that the court erred in finding that the Neenah policies were canceled before the second fire. Each of the defendants appealed, upon the ground that the court erred, among other things, in finding that the policies issued at the Neenah agency were binding on the defendants at any time, and in finding that the policies issued at the West Superior agency were binding after the first fire, by reason of the payment of premiums to Winchester, July 23d.

Phillips & Hicks and M. H. Beach, for plaintiff.

Barbers & Beglinger and Thomas Bates, for defendants.

MARSHALL, J. (after stating the facts).

The findings of fact are to the effect that Winchester was an insurance broker, with all the ordinary authority as such, to procure insurance for plaintiff, subject only to its approval respecting the character of the insurance companies issuing the policies; that, as such broker, he procured for plaintiff three of the policies in question, from defendants' agents, Sunderland & Ostrander, at West Superior, Wis., which, for convenience, we will designate as the “first line”; that such policies were issued in consideration, in part, of an agreement made with Winchester on plaintiff's behalf, that plaintiff would not take or accept any policy on the same property in either of the defendant companies from any other agent or agents, but that plaintiff did not know of such agreement till after the fire of June 19, 1894. From such facts, the trial court was requested to find, as a conclusion of law, that the plaintiff was bound by the agreement pursuant to which such first line of policies was issued, which request was refused, and a decision made, instead, that the authority of Winchester, though agent for plaintiff to procure the policies, was limited to such procurement, and that plaintiff was not bound by the agreement not to take a double line of insurance in the defendant companies. By the learned judge's opinion we are informed that his conclusion was based on the ground that Winchester was a special agent, and that, though in fact the agent for plaintiff, in law he was the agent for defendants, under section 1977, Rev. St. Leaving out of view the statute, which was evidently very persuasive with the trial court, what the powers of an insurance broker are can hardly be a subject for serious controversy. He is the agent for the assured, according to all authorities on the subject, though at the same time, for some purposes, he may be the agent for the insurer, and his acts and representations within the scope of his authority as such agent are binding...