Northrup v. Germania Fire Insurance

Ltoh, J.

The testimony tended to show that the plaintiff, who resided in Ripon, owned considerable real estate in "Win-neconne, including the insured property; and that, during several _vears preceding the time when such property was burned, he frequently employed one Edwards, a land agent at Winneconne, and also the general agent of the defendant company there, to collect rents and pay taxes on, and to find purchasers of, portions of such real estate. Edwards was not employed by the plaintiff as his agent in respect to such real estate generally, but was employed from time to time to do .specific acts in respect to specific property.

From January to about April 1, 1877, a son of the plaintiff was at "Winneconne, and during that time had the sole charge of the insured property, as the agent of his father. In the latter part of March, the plaintiff directed his son to have Edwards insure the property in the Underwriters’ Agency, the same as Edwards had formerly insured it, and to give the key of one of the buildings to Edwards, and have him “ take charge of and see to all the property in the building.” The defendant company is a member of the Underwriters’ Agency. Pursuant to the above instructions, plaintiff’s son applied to Edwards to insure the property. Edwards agreed to do so, and they arranged that he should retain the premium out of a larger sum in his hands, collected by him for the plaintiff. Edwards stated that he- was busy then, but would write the policy the next day, and that in the meantime the proj>erty *423 was insured. The son then put the property in his charge, and left Winneconne.

Edwards neglected to write the policy until May 7th. A fewT hours after he had written it, and mailed his report of the transaction to the proper office, the property was destroyed by fire.

We do not say that the above facts are proved, but only that there is sufficient evidence tending to prove them, to support a special finding that they are true. The nonsuit was granted on the sole ground that the uncontradicted evidence proved Edwards to have been the agent of the plaintiff when he wrote the policy. Because he was such agent, the court was of the opinion that he had no authority to write the policy, and hence that the same does not bind the defendant company.

Under the testimony the jury might properly have found that Edwards had no control of the property, except to watch over it and guard it against destruction or injury. Eor the purposes of this appeal, we must assume that he had no other power over it. Unless it can be held, therefore, that the mere watchman or guard of the property of another, who happens, at the same time, to be an insurance agent, is thereby incapacitated to write a valid policy on the property at the request of the owner, this judgment cannot be sustained. We are aware of no case in which it has been so held — certainly none was cited on the argument; and we are cognizant of no rule of law which incapacitates an insurance agent, thus entrusted with the care of property, to write a valid policy upon it. Indeed, it was well said in argument, that presumably it is for the interest of the insurance company taking the risk that the insured property be watched and guarded by its own chosen agent.

We conclude, therefore, that the nonsuit cannot be supported on the ground upon which the court granted it. •’We are also of the opinion that no other fact fatal to a recovery *424 on the policy is incontrovertibly proved. As the -action must be again tried, we purposely abstain from commenting upon other questions which were very ably argued by counsel, lest we might inadvertently prejudice one party or the other on the trial. It is deemed advisable to - go no further on this appeal than the present exigencies of the case require us to go, leaving to both parties a clear field for future contest.

By the Court. — Judgment reversed, and cause remanded for a new trial.

Taylob, J., took no part.