Schultz v. Caledonian Insurance

Wisconsin Supreme Court

Schultz v. Caledonian Insurance

68 N.W. 414, 94 Wis. 42, 1896 Wisc. LEXIS 123

Wisconsin Supreme Court·Decided September 22, 1896·Published·Cited by 9 cases

Opinion

Newman, J.

It is not necessary to decide, in this case, whether the plaintiff’s title to the ground on which his dwelling house stood was such as to satisfy the stipulation of the policy in that regard. The case seems to have been tried on the assumption that it was not. Perhaps the question is debatable. Some very respectable authorities hold such a title to be a fee simple within the meaning of such a stipulation in a policy of insurance. Loventhal v. Home Ins. Co. (Ala.), 20 So. Rep. 419, and cases there cited.

It is abundantly settled, and the rule is, that if the insurer, with full knowledge of facts which would avoid the policy, nevertheless execute and deliver a policy, he is held to have waived the defect, and is estopped to assert it. 11 Am. & Eng. Ency. of Law, 336, and cases cited in note 9; Miner v. Phœnix Ins. Co. 27 Wis. 693; Mechler v. Phœnix Ins. Co. 38 Wis. 665; Smith v. Commonwealth Ins. Co. 49 Wis. 322; Alexander v. Continental Ins. Co. 67 Wis. 422; Renier v. Dwelling House Ins. Co. 74 Wis. 89. The agent who has power to take risks and issue policies may bind the company by such waiver. Miner v. Phœnix Ins. Co., supra; Renier v. Dwelling House Ins. Co., supra. It is waived by the omission to make the proper indorsement on the policy when that is required. Smith v. Commonwealth Ins. Co., supra; Renier v. Dwelling House Ins. Co., supra.

All this is unquestioned; but it is urged that such waiver is not conclusive, unless it is conceded or found that, by the act which constitutes the waiver, it was intended to waive the defect. This question, it is said, is of fact for the jury, and not of law for the court. Some of the cases, in saying that certain acts constitute a waiver, do add the words, “ if [44] so intended.” But no case is cited which holds that the intention must be found specifically. The act itself constitutes the waiver. The defendant will not be heard to say: “ I took the plaintiff’s money; I gave him a policy; but I did not intend to give him insurance.” The act itself, being unequivocal, and with knowledge of the facts, constitutes, alone, the waiver. The intention is entirely immaterial, or is inferred conclusively from the act. Rasmusen v. N. Y. L. Ins. Co. 91 Wis. 81. There was nothing for the jury.

By the Court.— The judgment of the circuit court is affirmed.

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Newman, J.

It is not necessary to decide, in this case, whether the plaintiff’s title to the ground on which his dwelling house stood was such as to satisfy the stipulation of the policy in that regard. The case seems to have been tried on the assumption that it was not. Perhaps the question is debatable. Some very respectable authorities hold such a title to be a fee simple within the meaning of such a stipulation in a policy of insurance. Loventhal v. Home Ins. Co. (Ala.), 20 So. Rep. 419, and cases there cited.

It is abundantly settled, and the rule is, that if the insurer, with full knowledge of facts which would avoid the policy, nevertheless execute and deliver a policy, he is held to have waived the defect, and is estopped to assert it. 11 Am. & Eng. Ency. of Law, 336, and cases cited in note 9; Miner v. Phœnix Ins. Co. 27 Wis. 693; Mechler v. Phœnix Ins. Co. 38 Wis. 665; Smith v. Commonwealth Ins. Co. 49 Wis. 322; Alexander v. Continental Ins. Co. 67 Wis. 422; Renier v. Dwelling House Ins. Co. 74 Wis. 89. The agent who has power to take risks and issue policies may bind the company by such waiver. Miner v. Phœnix Ins. Co., supra; Renier v. Dwelling House Ins. Co., supra. It is waived by the omission to make the proper indorsement on the policy when that is required. Smith v. Commonwealth Ins. Co., supra; Renier v. Dwelling House Ins. Co., supra.

All this is unquestioned; but it is urged that such waiver is not conclusive, unless it is conceded or found that, by the act which constitutes the waiver, it was intended to waive the defect. This question, it is said, is of fact for the jury, and not of law for the court. Some of the cases, in saying that certain acts constitute a waiver, do add the words, “ if [44] so intended.” But no case is cited which holds that the intention must be found specifically. The act itself constitutes the waiver. The defendant will not be heard to say: “ I took the plaintiff’s money; I gave him a policy; but I did not intend to give him insurance.” The act itself, being unequivocal, and with knowledge of the facts, constitutes, alone, the waiver. The intention is entirely immaterial, or is inferred conclusively from the act. Rasmusen v. N. Y. L. Ins. Co. 91 Wis. 81. There was nothing for the jury.

By the Court.— The judgment of the circuit court is affirmed.

Schultz v. Caledonian Insurance, 68 N.W. 414, 94 Wis. 42, 1896 Wisc. LEXIS 123 (Wis. 1896).

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