Kidder v. Knights Templars & Masons Life Indemnity Co. , 94 Wis. 538 ( 1896 )

Piotey, J.

The view that we feel compelled to take of ■this case, under previous decisions of this court, renders it ■unnecessary to consider whether the construction of the provisions of the policy, in respect to the residence of the in•sured south of the thirty-second parallel of north latitude, adopted by the circuit court in directing a verdict in favor •of the plaintiff, was correct or not. Assuming that it was erroneous, and that a forfeiture of the policy upon the .ground insisted on had occurred, still we think it was waived by the company calling on the claimant, through its general manager, to correct and amend her proofs of loss, and by her compliance with such request at an expense to her of $10, and the consequent delay in the collection of 'her claim, and that the company is now estopped from insisting that the policy was forfeited. The general manager ■of the company, Mr. Gray, was one of the directors of the •company, and it clearly appears that it was within the scope of his duties as such general manager to conduct correspondence with claimants under policies, to receive .proofs, and to call on them as occasion might occur for further or amended proofs. Notice to him in respect to a loss, and the particulars thereof, was certainly notice to the company; and in calling on a claimant for further or amended proofs and making requests in relation thereto, he must be considered as having lawfully represented it. The company was informed, by the letter of the claimant’s attorney of November 8 to tbe general manager that the insured died at De Land, Florida, on the 16th of September, 1893, and sent, through him, to such attorney, on the nest day, suitable blanks for making proofs of loss. These proofs were made out and forwarded at an expense to the claimant of $25, and subsequently she incurred a further expense, as stated, in correcting and amending them at the instance and request of such general manager. The proofs as originally submitted, and when returned for amendment and correction, showed upon their face the ground of forfeiture relied on by the defendant with such degree of clearness and certainty as to have precluded any reasonable doubt of the duty of the company to have at once stood on the defense and denied the loss. The general manager evidently had in his hands and examined the proofs quite critically, to enable him to point out the defects mentioned in his letter to the claimant’s attorney. The time had then arrived for the company to determine either to insist upon the forfeiture, or to continue to deal with the claimant on the basis that the policy remained a continuing contract, binding upon the claimant and on the company. It is hardly possible that the general manager could have discovered the defects in the proofs pointed out in his letter without also discovering that the certificate of the attending physician, Dr. Lyon, showed that the insured died at his residence, Volusia county, Florida, September 16,1893; that he had been his attending physician about two years; that the occupations of the insured were manufacturing and orange grower; and as to place of residence, “Eau Claire, Wisconsin, and Volu-sia county, Florida; ” that the duration of his last illness was forty-two days, and the date of the last visit of the physician- was September 15, 1893; and that he remained in attendance until his death. With this information before him, the general manager returned the proofs, inclosed in the letter already mentioned, for correction and amendment, and also inclosed a full set of blanks for making, if need be, entirely new proofs. It was upon the identical statements embraced in the proofs as first furnished that the finance committee repudiated any liability for the loss. It is shown that they had no other information on this subject than these statements. After a month’s delay they instructed the general manager to write a letter declining to pay, upon the ground that the policy had been violated by virtue of the residence of the insured south of the thirty-second parallel. In May, Ins. § 505, cited with approval in 2 Bacon, Ben. Soc. § 421, it is stated that 44 the terms 4 es-toppel ’ and 4 waiver,’ though not technically identical, are so nearly allied, and, as applied in the law of insurance, so like in the consequences which follow their successful application, that they are used indiscriminately by the courts.” In Diehl v. Adams Co. Mut. Ins. Co. 58 Pa. St. 443, it is said that a waiver of breach of conditions “never occurs unless intended, or where the act relied on ought, in equity, to estop the party from denying it.” And in Bigelow, Estoppel (4th ed.), 27, it is said that 44 another kind of estoppel by conduct may arise, to wit, by a party to a contract or transaction inducing the other to act in the belief that the former will waive certain rights he might otherwise maintain against the latter.” _

The rule of waiver by estoppel, as applied to the. facts in this case, has been so often declared in this state that extended discussion would be out of place. The doctrine is stated by Cole, C. J., in Cannon v. Home Ins. Co. 53 Wis. 593, to be “ that a party cannot occupy inconsistent grounds or positions; that one who relies upon the forfeiture of a contract cannot, at the same time, treat the contract as an existing, valid one, nor call upon the other party to the contract to do anything required by it; or, to apply the proposition to the precise facts in the case, that, as the defendant, in its correspondence with the attorneys of the plaintiff, after full knowledge of the forfeiture, saw fit to call for additional proofs of loss, recognizing by this act the continued validity of the policy, it could not, after the plaintiff had gone to the expense and trouble of furnishing these, proofs, change its ground and claim that the policy was no longer in force.”' Several former cases in this court were cited in support of this 'proposition, and it was said that “ they certainly settle the rule of law for this state.” Webster v. Phoenix Ins. Co. 36 Wis. 67; Northwestern Mut. L. Ins. Co. v. Germania F. Ins. Co. 40 Wis. 446; Gans v. St. Paul F. & M. Ins. Co. 43 Wis. 108. See, also, Oshkosh G. L. Co. v Germania F. Ins Co. 71 Wis. 454; Jerdee v. Cottage Grove F. Ins. Co. 75 Wis. 345 It seems to be well established that such waiver may arise from the act of the general agent of the company in relation to any matter within the scope of his authority, and the acts of the general manager of the defendant in reference to proofs of loss, and in requests for amendments or corrections thereof, are, we think, within the rule. 2 Bacon, Ben. Soc. § 626. The amount of expense incurred by the claimant, if substantial, is not material. In Jerdee v. Cottage Grove F. Ins. Co., supra, which was the case of a mutual company, the amount was but $5; and in Northwestern Mut. L. Ins. Co. v. Germania F. Ins. Co. 40 Wis. 446, the expense was quite small, but there was a loss of interest on the claim caused by delay. The rule as to waiver of forfeitures by estoppel is regarded as applicable to policies in mutual fire and mutual benefit companies. Stylow v. Wis. O. F. M. L. Ins. Co. 69 Wis. 224; Whiting v. Miss. Valley M. M. Ins. Co. 76 Wis. 599; Jackson v. N. W. Mut. R. Asso. 78 Wis. 463—472; True v. Bankers’ L. Asso. 78 Wis. 287; McKinney v. German M. F. Ins. Soc. 89 Wis. 653-658; Seibel v. N. W. Mut. R. Asso., ante, p. 253. But the doctrine of estoppel cannot be successfully invoked to create a liability not contracted for, or one which would be outside or in violation of the powers of the company. McCoy v. N. W. Mut. R. Asso. 92 Wis. 578-584. Like stock companies, these companies act and deal with their patrons by and through their officers and agents, and we are not aware of any sound reason for holding that they will not, like stock companies, be affected and bound, as by estoppel, by reason of the acts and conduct of such officers and agents within the scope of their duties. It seems to be settled that, “ in the absence of express provisions in the charter of mutual life insurance companies limiting the scope of the duties and powers of such officers or agents, it must be presumed that each person, in becoming a member of the company, impliedly consents that it shall be represented by such officers and agents as are reasonably necessary for the transaction of its business, and that they shall possess the powers and perform the duties ordinarily possessed and performed by such officers and agents.” Niblack, Ben. Soc. & Acc. Ins. § 95, and cases cited; Protection L. Ins. Co. v. Foote, 79 Ill. 362.

The facts were undisputed, and the question of waiver was one of law for the court. We are not unmindful that Gray, the general manager, testified that, when he wrote the letter of November 21, to the claimant’s attorney, requesting the amendment and correction of the proofs, and sending him blanks, that he did not know or suspect or believe that any provision of the policy in respect to residence or travel had been violated, although the fact is he had been informed, in the letter to him of November 8, notifying the company of the death of the insured, that he died in Yolusia county, Florida,' and although it is evident, from his letter of November 21, that he had handled and carefully examined the proofs, and he does not deny but that he had read and examined them, as it was clearly his duty to the claimant and to the company to have done with reasonable care and dispatch. They show that the insured died within the alleged inhibited territory, and that he had been a sojourner and dwelling therein for a period of six weeks, and contained evidence upon which it -was quite clear that the facts relied on as a ground of forfeiture were well founded. The certificate containing them was a sworn certificate. The company must be held affected by notice of these facts, and neither. Mr. Gray nor any of its officers with these facts before them can now be heard to say that they did not personally know or believe that there had been a forfeiture. The claimant, in her subsequent action, had a right to suppose that he had acted with diligence, and had read the proofs and formed the only conclusion the facts stated would warrant. There was, therefore, no question for the jury, and the court properly directed a verdict for the plaintiff.

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