Winans v. Allemania Fire Insurance

38 Wis. 342

• Court: Wisconsin Supreme Court
• Decided: August 15, 1875
• Status: Published

Opinion

Ryan, C. J.

The appellant relies, in support of the demurrer, on breach by the respondent, claimed to be apparent'in the complaint, of a condition of the policy, prohibiting the use'of gasoline upon the premises insured, unless permitted by writing on the policy.

The complaint avers that when the policy was issued, the building was lighted by gasoline, and that the respondent was removing the gas burners and replacing them with kerosene lamps, to the knowledge of the appellant’s agent who issued the policy; and that the agent agreed for the appellant “ at the time of the delivery of the said policy and thereafter before the fire as hereinafter stated, that the said premises might be lighted with gasoline gas until such change could be conveniently effected,” and permitted the respondent to continue the use of gasoline till the fire; and that the respondent used due diligence in removing the gas burners and dispensing with the use of gas in lighting the. building.

It is said that here is no agreement of the agent pleaded, but only an unfulfilled promise of the complaint to plead such an agreement; the words “as hereinafter stated” referring to the agreement and not to the fire. Such verbal criticism is too nice for the construction of a pleading. The passage quoted fully states the agreement; and it is .plainly the fife, and not the agreement, which is to be thereafter stated.

This case is governed by Miner v. Phœnix Ins. Co., 27 Wis., 693. That case has been repeatedly approved by this court. McBride v. Republic Ins. Co., 30 Wis., 562; Devine v. Home Ins. Co., 32 id., 471; Parker v. Amazon Ins. Co., 34 id., 363: Webster v. Phœnix Ins. Co., 36 id., 67; Wright v. Hartford Ins. Co., id., 522. The judgment of the case itself was well considered, and is supported by great weight of authority. And we must hold it to be the settled law of this court, that the agent of an 'insurance company, authorized to take risks and issue policies against fire, may waive, by parol a condition in a policy issued by him.

It was contended, however, that this case is taken out of the rule by a special agreement on the subject written in the body of the policy; which gave permission to the respondent to light the premises with gasoline when the generator should be removed thirty feet from the building. It was argued that the-written license excludes a parol license on the same subject. But we are unable to perceive how the permanent license to use gas, upon the removal of the generator, is in any way in conflict with or exclusive of the temporary license to use it pending the change from gas to kerosene. And it is not difficult to understand why it should have been considered necessary to insert in the policy a license which- was intended as a permanent qualification of the condition, and to rely on parol for a license which was essentially a temporary convenience. Such is undoubtedly a loose and dangerous mode of doing business. But fire insurance is a transaction between experts and inexperts (McBride v. Republic Ins. Co., supra), and the rule adopted seems to be essential to the ends of justice.

By the Court — The order overruling the demurrer is affirmed.