Beal v. Park Fire Insurance , 16 Wis. 241 ( 1862 )

By the Court,

Dixon, C. J.

The company had ratified the acts of Hyer as their agent to solicit insurance. Hyer filled out the policy; it was subsequently renewed by an agent, whose authority was not questioned and its due execution was not denied by the answer. The company could not ratify for its benefit and repudiate when adversely interested. The evidence of Hyer’s acts and declarations at the time the risk was taken, together with those of die renewing agent, Hatch, and also the testimony of the latter, were properly received, unless as urged by counsel, they should have been excluded on the ground that they contradicted the written contract set forth in the policy and conditions annexed. There is little doubt that such was the effect; yen without intending to question the rule that parol evidence is inadmissible to vary written instruments, we are of the opinion that the evidence was properly received. That rule is encountered by, and as we think, must yield to another rule in this case, which is, that no one should take advantage of his own mistake or wrong, to the injury of another who is innocent. The policy was issued and renewed at the solicitation of the company, without written, application on the part of the insured, and upon the personal inspection and survey of the premises by its agents. There is no pretense of fraud or misrepresentation on the part of the insured, that he did anything to deceive or mislead the agents or to prevent their acquiring full knowledge of the nature and extent of the risk. Everything was done in the full belief, that after visiting the premises, the agents were competent to, and would so fill up the policy as to make it valid between the company and the insured. They saw, or might have seen, the openings in the walls and knew the uses to which the building was put and which remained unchanged to the time of the fire. With this knowledge or means of knowledge, they delivered and subsequently renewed the policy and received the -premiums. If they did so, intending the policy to be void, it was a gross fraud. If it was a mistake, the condition of the company is no better. In either ease it is precluded from taking advantage of the acts of its agents done within the scope of their employment. For these reasons we think the testimony was admissible and that- the judgment should be affirmed. Hough vs. City Fire Insurance Co., 29 Conn., 10, presented a similar question. The applicant described the property in his written application as “ his house ” and it was so described in the policy. The policy contained this condition. ‘ ‘ If the interest in the property to be insured is not absolute, it must be so represented to the company, and expressed in the policy in writing; otherwise the insurance shall be void.” The legal title to the property was in another with whom the insured had at the time of the application, made a parol contract for its purchase for a price agreed upon, a part of which had been paid and the insured was in possession. The application was filled out by an agent of the company. Upon the claim of the company, in a suit upon the policy, that the insurance was void by reason of the omission of the insured to state in the application, the condition of the title, parol evidence was admitted to show that the insured stated to the agent the exact facts as to the state of the title. The ground of admission was, that the mistake was that of the agent of which the company ought not to be allowed to take advantage, notwithstanding the general rule, that all parol statements are merged in the written contract.

Judgment affirmed.