Devine v. Home Insurance Co. , 32 Wis. 471 ( 1873 )

Dixon, C. J.

The policy is of a form undoubtedly designed to be issued only when the buildings and property insured are situate upon premises which are occupied. Unoccupied premises, or buildings and property situate thereon and themselves unoccupied, would obviously require some different form of policy for their insurance against loss or destruction by fire. Either the condition with respect to the premises becoming vacant or unoccupied, and so remaining for the period of more than thirty days without notice to and consent of the company in writing, would need to be stricken out, or the written consent of tbe company would be requisite at the time the policy issued.

But notwithstanding this is so, still it does not follow, because a policy in the first form was made out and delivered when the last form should have been adopted, that it is void in the hands of the insured. If the mistake was that of the agent of the company issuing the policy, or the fault, if any, his, and not that of the insured, the policy will nevertheless be valid, and the company bound to answer for the loss. This principle has been so often asserted by this court of late, and is sustained by such an abundance of authority elsewere, that it is needless to dwell upon it. Miner v. Phoenix Ins. Co., 27 Wis., 693; McBride v. Republic Fire Ins. Co., 30 Wis., 562; May v. The Buckeye Mut. Ins. Co., 25 Wis., 291. If the agent who issued the policy knew that the premises were unoccupied, if he was so informed by the assured at the time, then it was his mistake or fault that the terms or conditions of the policy did not conform to the facts of the case or application presented, as he knew those facts to be. If, notwithstanding such knowledge, he issued the policy in form as shown, it was a waiver on his part, and through him on the part of the company, of any written or printed condition contained in the policy respecting the occupation of the premises and which would otherwise have gone to avoid the contract or release the company from liability. This was expressly so held in the two cases first above cited.

The proofs in this case show that the agent who made out and delivered the policy and received the premium from the plaintiff, knew that the premises were unoccupied at that time. The plaintiff so testified on his examination as witness, before he rested his case. The motion for a nonsuit was therefore properly denied. The case of Wustum v. City Fire Ins. Co., 15 Wis., 138, cited by counsel for the company to this point, differed very materially in its facts. It appeared there that no notice was ever given to the company or its'agent that the bouse bad become vacant or was unoccupied. And tbe case of Keeler v. Niagara Ins. Co., 16 Wis., 523, also cited, is not in conflict witb but corroborates tbe views above expressed. Tbe case of The Commercial Ins. Co. v. Spankneble, 52 Ill., 53, cited by counsel for tbe plaintiff, was almost identical in its facts with tbe present. It was there held that tbe issuing of a policy containing a similar condition and under like circumstances, the agent being informed that the premises were unoccupied, bound tbe company.

Tbe foregoing remarks seem to dispose of all tbe points taken and objections urged by counsel for tbe company. Tbe agent himself, when brought to tbe stand, testified that be knew tbe bouse was unoccupied when be issued tbe policy, but further testified that the plaintiff agreed at the time that tbe same should be occupied within thirty days thereafter. Upon this question there was a conflict of testimony, and the jury, under a proper instruction from tbe court, found tbe fact for tbe plaintiff. Counsel for the company also asked another instruction on tbe same subject, which was refused, and, as we think, properly. It is obvious that the court should not have instructed tbe jury that tbe policy was void, except only in case they found that there was an agreement to enter and occupy within tbe thirty days, which was tbe instruction given. There was no testimony tending to show any other fixed or definite time within which the plaintiff was to enter. If there was no time for that purpose definitely fixed or agreed upon, then it would have become tbe duty of the agent to have ascertained tbe fact, and notified tbe plaintiff that tbe company elected to cancel or consider the policy void because the premises remained unoccupied. Until such notice was given, and tbe premium refunded, tbe contract would have remained obligatory upon tbe company.

By the Court.— Judgment affirmed.