Zell v. Herman Farmers' Mut. Ins. Co.

• Decision Date: 28 January 1890
• Parties: ZELL v. HERMAN FARMERS' MUT. INS. CO.
• Court: Wisconsin Supreme Court

75 Wis. 521

44 N.W. 828

ZELL

v.HERMAN FARMERS' MUT. INS. CO.

Supreme Court of Wisconsin.

Jan. 28, 1890.

Appeal from circuit court, Dodge county; A. SCOTT SLOAN, Judge.

Action by Frederick Zell against the Herman Farmers' Mutual Insurance Company on a contract of insurance. Rev. St. Wis. 1878, § 1977, provides that “whoever solicits insurance on behalf of any insurance corporation, or transmits an application for insurance or a policy of insurance to or from any such corporation, or who makes any contract of insurance, or collects or receives any premium for insurance, or in any manner aids or assists in doing either, or in transacting any business for any insurance corporation, or advertises to do any such thing, shall be held an agent of such corporation, to all intents and purposes,” etc. From a judgment for plaintiff, defendant appeals.J. E. Malone and J. J. Dick, for appellant.

Charles Barber and George Hilton, for respondent.

TAYLOR, J.

The respondent brought this action for the purpose of recovering from the appellant for the loss by fire of a threshing-machine owned by the respondent, and which he alleges was insured by said appellant against such loss. The material facts are as follows: The plaintiff held a policy of insurance against loss by fire, issued to him by the appellant upon the threshing-machine in question, owned by and in the possession of the respondent. This policy bore date March 30, 1886, and expired March 30, 1887, (premium paid in this policy, $3.20.) That, shortly before the expiration of this policy, the respondent applied to the agent of the appellant, through whom he obtained the said policy, to renew or continue the insurance upon this machine for another year, and paid the said agent the sum of $3.70 for such renewal or continuance of the same for one year from the termination of the first policy, and upon such payment said agent promised the respondent to continue the insurane or another year. The agent thinks he wrote to the company to continue the insurance another year, but is not certain as to the fact. Afterwards, on the 1st day of June, 1887, the respondent notified the agent of the appellant that he had not received a new policy or a renewal of the old one, on the threshing-machine, although he had received another policy or policies, he had applied for at the same time, and requested the agent to look after the matter, which he promised to do. At this time the agent gave the respondent a receipt for the $3.70 paid for such continued insurance. The receipt reads as follows: “Marion, June 1st, 1887. Received of Fred. Zell three 70-100 dollars, being premium for Pol. Herman, F. M. I. Co. Fire Insurance Co. C. F. SCHROEDER, Agent.” The plaintiff testified that when he paid the $3.70, in the latter part of March, 1887, to the agent of the defendant, the agent said he would renew the policy for one year after it ran out, and said he would send the policy as soon as he could. He (the agent) said it was insured from the time the old policy ran out for another year. The agent testified that on the 28th day of March, 1887, the respondent told him he wanted the insurance on the threshing-machine renewed. “I said I would write to the company, but I did not say they would send the policy.” To the question, “Did you give him to understand that he was insured from then on?” he answered, “I believe I did.” He also said that he gave him to understand the same thing when he signed the receipt, in June, 1887. He also said: “I gave him to understand that he was insured when I signed the receipt in June, and that the receipt was evidence of the insurance.” The agent also testified that it was not the custom of the company to renew policies of insurance, but, when the insured desired to extend the insurance, to issue new policies. The agent also testified that, “in such cases, the company sometimes issued the new policies, extending the insurance without any new written application.” In cases of this kind, the agent said he “generally wrote a letter to the secretary, and told him the property was the same the men then wanted to renew; that is the usual way I did the business, and a new policy would be issued.” Neither the agent nor the company has ever offered to return to the plaintiff the $3.70 premium paid by him. The loss occurred on the 13th or 14th of July, 1887. There was no controversy as to the amount of the loss, or proofs of loss. On the trial, after hearing the evidence, the learned circuit judge directed the jury to render a verdict for the plaintiff for $400, with interest; that being the amount of insurance mentioned in the policy issued upon the threshing-machine in the year 1886, and which it was claimed was renewed or extended in March, 1887, for another year. The company appealed from the judgment in favor of the respondent.

The learned counsel for the appellant contend that the evidence introduced on the part of the plaintiff fails to show that he had any insurance upon the threshing-machine at the time it was destroyed. The contention of the learned counsel is that the agent of the company had no authority to make any contract for insurance on the part of the company, which could bind the company, until such contract was approved by the board of directorsor other general officers of the company, or by the actual issuing of a policy of insurance by the company; and as it is admitted that there is no evidence in the case showing any approval by the company of the alleged contract of its agent, or showing that the board of directors, or other general officers, had any knowledge of such alleged contract until after the loss, the company is not liable for the loss. The learned counsel of the company seem to contend that, under the by-laws and rules of the company, it cannot bind itself in any case except by issuing a policy of insurance. To sustain this proposition, they cite a by-law of the company which reads as follows: “All applications for insurance shall, before the policy is issued, be...