Shafer v. PHœnix Ins. Co.

• Citation: 53 Wis. 361,10 N.W. 381
• Parties: SHAFER AND OTHERS v. PHŒNIX INS. CO.
• Decision Date: 03 November 1881
• Court: United States State Supreme Court of Wisconsin

53 Wis. 361

10 N.W. 381

SHAFER AND OTHERS

v.PHŒNIX INS. CO.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from circuit court, Winnebago county.

Carpenter & Smiths, for respondents.

L. S. Dixon, Dixon, Noyes & Dixon, and Markham & Noyes, for appellant.

COLE, C. J.

It would be laborious and unprofitable to notice at length the many exceptions relied on by the learned counsel for the defendant to reverse this judgment. Many of the questions discussed by him have already been considered by this court and decided. Of course this court would not reverse a judgment because the trial court permitted the plaintiffs to call a witness to show their respective interest in the insured property after a motion for a nonsuit had been made and denied. That was a matter resting in the discretion of the court below, which this court will not review. The remark which the circuit judge made, to the effect that while counsel requested, as was his right, that the jury should find a special verdict, he could see no necessity for one, could not possibly have prejudiced the defendant. The court did submit certain questions for the jury to answer. These questions seem to cover the controverted issues of fact arising upon the pleadings.

The real defence in the case was based on the ground that the policy was avoided, or did not take effect, in consequence of the recovery of the Sweet and Stevens judgments against the assured, and by the decree of foreclosure of the Bray mortgage. These judgments were entered up in the months of May and June, 1879; the policy was renewed on the third of October following. There was a clause in the policy to the effect that if the insured property should be sold or transferred, or foreclosure proceedings be commenced upon a mortgage against it, or a judgment lien should exist upon it, or “the issuing or levy of an execution without actual possession against any kind of property hereby insured, or if the property insured be assigned under any bankrupt or insolvent law, or any change take place in the title,” etc., in every such case the policy should be void. And the important question litigated was whether the defendant's agent who renewed its policy had such notice or knowledge of the existence of these judgments and commencement of the foreclosure proceedings as would charge the company and amount to a waiver of the condition of the policy. The jury distinctly found, in answer to direct questions submitted, that the company had knowledge when the policy was renewed of the existence of the judgments, and of the commencement of the proceedings and decree in the foreclosure suit.

It is, however, objected that the verdict of the jury on these points is contrary to the evidence,--so much so in respect to some questions as to be perverse. But, as we understand the testimony in the bill of exceptions, there is evidence which supports the verdict. It is clearly not the province of this court to decide upon the weight of testimony or to say which statement of the witnesses, there being a conflict, should be believed. That is essentially the province of the jury. It is doubtless the duty of this court to examine the evidence sufficiently, to ascertain whether there was testimony which warranted the conclusion the jury drew from it. On that point we have no hesitation in saying there was ample testimony to sustain the result at which the jury arrived. The fact cannot be well denied that Caswell, the agent, lived in Omro, where the assured resided. He had acted for some time as agent for insurance companies which had policies on the building destroyed, includingthe defendant. As agent he issued the defendant's policy and renewed it. He had full authority to make contracts of insurance and bind his principals. About this no question is made. Now, there is certainly evidence which tends to prove that Caswell learned, from conversations which he had with the assured some time prior to the renewal, all about the recovery of the Sweet and Stevens judgments, the commencement of the suit to foreclose the Bray mortgage, and the entry of judgment therein. As there was evidence to show that Caswell had full knowledge of these facts when he renewed the policy, the jury were justified in finding that his knowledge on these matters was the knowledge of the defendant, and binding upon it. But it is said and claimed that in order to charge the defendant with a knowledge of these facts the agent must have been acting for it at the time he learned about them. In other words, that unless the agent acquired that knowledge in his capacity as agent of the defendant, and while engaged in the transaction of its business, the company was not bound by it. We see no reason for thus restricting the rule. If the agent, when he renewed the policy, had not forgotten the information which he had received from the assured on these subjects,--if he had in his mind these facts concerning the risk, knew of the existence of the judgments and of the foreclosure suit,--why should this not be deemed sufficient, and equivalent to a notice to the defendant of the same things. If the agent knew the facts when he was called upon to act for his principal in the matter, that is all we consider necessary. There is no hardship in imputing such...