Joslin v. Nat'l Reserve Ins. Co. of Ill.

• Decision Date: 29 April 1930
• Citation: 201 Wis. 506,230 N.W. 711
• Parties: JOSLIN ET AL. v. NATIONAL RESERVE INS. CO. OF ILLINOIS, DUBUQUE, IOWA. JOSLIN ET AL. v. AMERICAN NAT. FIRE INS. CO. OF COLUMBUS, OHIO (TWO CASES).
• Court: Wisconsin Supreme Court

201 Wis. 506

230 N.W. 711

JOSLIN ET AL.

v.NATIONAL RESERVE INS. CO. OF ILLINOIS, DUBUQUE, IOWA.

JOSLIN ET AL.

v.AMERICAN NAT. FIRE INS. CO. OF COLUMBUS, OHIO (TWO CASES).

Supreme Court of Wisconsin.

April 29, 1930.

Appeal from a judgment of the Circuit Court for Oconto County; Edgar V. Werner, Circuit Judge.

Reversed.

Actions commenced on November 23, 1928, by plaintiffs, as owner and mortgagee, respectively, to recover from each of the defendants on policies of fire insurance for loss sustained by the destruction by fire of the insured property, which was an apartment house, located in Illinois. By stipulation, the actions on two of the policies were consolidated, and there was a joint trial of the actions on the three policies. The damages were also stipulated at not more than $2,395.49, which was the amount found by the appraisers. There was a jury trial and a special verdict, upon which judgments were entered September 19, 1929, dismissing the complaints against the defendants. Thereupon plaintiffs appealed, and by stipulation the appeals were consolidated.Allan V. Classon, of Oconto, for appellants.

Shaw, Muskat & Sullivan, of Milwaukee, for respondents.

FRITZ, J.

The fire in question originated in the basement of the insured apartment house, which was owned by Hettie J. Joslin, and occupied by several tenants. She collected the rents, and occasionally went to the building, but never went into the basement. She employed a janitor to look after the building and apartments, clean the stairways, and attend to the heating plant which was in the basement. Tenants had access to the basement, but did not make use of the laundry facilities.

As found by the jury, upon ample evidence, the fire was caused by the operation, in the basement, of a still which was used in unlawfully manufacturing alcoholic liquor for illegal purposes, and which increased the fire hazard of the building. There was no finding, and no evidence, that the plaintiffs had any notice or knowledge of the presence or use of a still in the basement. However, the jury did find that the presence and use of the still was acquiesced in by plaintiffs' agent, under circumstances which made it reasonably apparent to him that the still was intended to be operated. However, neither that finding, nor the evidence in these cases, admitted, as a matter of law, of imputing to the plaintiff Joslin that knowledge of her agent.

There is no proof whatsoever as to who operated the still. Under the evidence, it is wholly conjectural as to whether it was operated by the janitor, or by tenants, or other persons. If it was operated by any one else than the janitor, and not for his benefit his knowledge thereof, under the circumstances attending his lawful employment by Joslin, would be imputed to her. However, if it was operated by the janitor, or for his use or benefit, without actual knowledge or notice thereof on the part of the plaintiffs, then such operation or use by the janitor was foreign to, and beyond the scope of, his lawful employment, and the presumption that the knowledge of or notice to the agent is notice to the principal does not apply.

“Beyond the scope of his employment, the agent is as much a stranger to his principal as though he were a third person.” Mechem on Agency, § 737.

“The rule that the principal is affected with knowledge acquired by the agent in the transaction to which his agency relates is based upon the duty of the agent to disclose to his principal all knowledge and information he possessed at the time or acquired in relation to the subject-matter of the agency, and the presumption is that he communicates it accordingly; but he cannot be expected to communicate information which, from his relation to the subject matter, he would not disclose; and where his relation to the previous transaction is such as would be sufficient to induce him to withhold the information the presumption of its communication is rebutted.” Cole v. Getzinger, 96 Wis. 559, 576, 71 N. W. 75, 80. See, also, In re Plankinton Bank, 87 Wis. 378, 384, 58 N. W. 784;Hathaway v. Arnold, 157 Wis. 22, 30, 145 N. W. 780;Swennes v. Citizens' State Bank, 170 Wis. 197, 199, 174 N. W. 457.

In Doscher v. State, 194 Wis. 67, 214 N. W. 359, 360, in connection with holding that a proprietor, licensed to sell nonintoxicating liquor, was not criminally liable for the conduct of a bartender who unlawfully had intoxicating liquor on the premises, this court said:

“We deem that doctrine not applicable here, because the possession of the agent here was not within the scope of his employment. It was no more part of this employee's duty to obtain or have unlawful liquor than to have unlawful possession of drugs or burglar tools. * * * Here the defendant, as employer, did not confer upon the one left in charge of the premises any power, authority, or means for any such...