Northrop v. Germania Fire Ins. Co.

• Citation: 4 N.W. 350,48 Wis. 420
• Parties: NORTHRUP v. GERMANIA FIRE INSURANCE COMPANY
• Decision Date: 03 February 1880
• Court: United States State Supreme Court of Wisconsin

4 N.W. 350

48 Wis. 420

NORTHRUP v. GERMANIA FIRE INSURANCE COMPANY

Supreme Court of Wisconsin

February 3, 1880

Argued January 7, 1880

APPEAL from the Circuit Court for Fond du Lac County.

Action on a policy of insurance on certain buildings, and machinery and fixtures therein, in Winneconne. On the trial, the court nonsuited the plaintiff. This appeal is by the plaintiff from the judgment of nonsuit.

Reversed and cause remanded for a new trial.

Geo. E Sutherland, for appellant, upon the question of agency argued that it could not be seriously claimed that because an insurance agent had the keys of property left with him, he was incompetent to insure it; that such control of the property was not inconsistent with his duty to the company, but was in fact safer and better for the company; that it is a fact of common notoriety that nearly all real estate agents are also insurance agents, and write policies under like circumstances, and if the rule of the court below were to be adopted and enforced, at least one quarter of the existing insurance would be swept away. Certainly the company itself could issue a valid policy of insurance, though having the property in charge; and no valid reason can be assigned why its general agent could not do the same. Again, it appears that Edwards made an entire and perfect verbal contract of insurance with plaintiff's son before he received the keys of the house, when this question could not be raised. The written policy, when issued, related back to the verbal one. Lightbody v. N. A. Ins. Co., 23 Wend., 18; Sanborn v. Fireman's Ins. Co., 16 Gray 448. At any rate, the question of Edwards' agency was for the jury, and not for the court. Wood on Fire Ins., pp. 632, 681; 26 N.Y. 460; 61 Pa. 107; Anson v. Winnesheik Ins. Co., 23 Iowa, 84; Bebee v. Hartford Ins. Co., 25 Conn. 51; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 id., 519; Rowley v. Empire Ins. Co., 36 N.Y. 550; Rathbone v. Ins. Co., 31 Conn. 194; Hough v. City F. Ins. Co., 29 id., 10; Pierce v. Nashua Ins. Co., 9 Am., 235; 50 N. H., 297; Sheldon v. Conn. Mut. Life Ins. Co., 25 Conn. 207; Sprague v. Ins. Co., 69 N.Y. 128. Finally, admitting Edwards to have been plaintiff's agent in effecting the insurance, the contract was not void, but only voidable. The defendant company has received the premium, retains the same, and has not offered to return it. It must therefore be held to have affirmed the contract. New York Central Ins. Co. v. National Protection Ins. Co., 20 Barb., 468; Mershon v. Ins. Co., 34 Iowa, 87; Washoe Tool Co. v. Ins. Co., 66 N.Y. 613; Lycoming Ins. Co. v. Slockbower, 26 Pa. 199; Powell v. Factor's Ins. Co., 28 La. Ann., 19; Williamsburg, etc., Ins. Co. v. Cary, 83 Ill., 453.

For the respondent, there was a brief by Cottrill, Cary & Hanson, and oral argument by Mr. Cottrill. They argued from the testimony, that Edwards, when he issued the policy of insurance, was acting as plaintiff's agent; and that he exceeded his instructions from the defendant company, and plaintiff, his principal, was chargeable with notice of that fact. They further contended that the same person could not be agent for both contracting parties. Stewart v. Mather, 32 Wis. 344; Farnsworth v. Brunquest, 36 id., 202; Meyer v. Hanchett, 39 id., 419; Bray v. Morse, 41 id., 343; Shirland v. Monitor Iron Works, 41 id., 162; Rice v. Wood, 113 Mass., 133; Farnsworth v. Hemmer, 1 Allen, 494; Walker v. Osgood, 98 Mass., 348; Raisin v. Clark, 41 Md., 158; Lynch v. Fallon, 11 R. I., 311; Scribner v. Collar, 40 Mich., 375; Pugsley v. Murray, 4 E. D. Smith, 245; Everhart v. Searle, 71 Pa. 256.

WILLIAM P. LYON, J. DAVID TAYLOR, J., no opinion.

OPINION

LYON, J.

The testimony tended to show that the plaintiff, who resided in Ripon, owned considerable real estate in Winneconne, including the insured property; and that, during several years preceding the time when such property was burned, he frequently employed one Edwards, a land agent at Winneconne, and also the general agent of the defendant company there, to collect rents and pay taxes on, and to find purchasers of, portions of such real estate. Edwards was not employed by the plaintiff as his agent in respect to such real estate generally, but was employed from time to time to do specific acts in respect to specific property.

From January to about April 1, 1877, a son of the plaintiff was at Winneconne, and during that time had the sole charge of the insured property, as the agent of his father. In the latter part of March, the plaintiff directed his son to have Edwards insure the property in the Underwriters' Agency, the same as Edwards had formerly insured it, and to give the key of one of the buildings to Edwards, and have him "take charge of and see to all the property in the building." The defendant company is a member of the Underwriters' Agency. Pursuant to the above instructions, plaintiff's son applied to Edwards to insure the property. Edwards agreed to do so, and they arranged that he should retain the premium out of a larger sum in his hands, collected by him for the plaintiff. Edwards stated that he was busy then, but would write the policy the next day, and that in the meantime the property was insured. The son...