Cooper v. Insurance Co. of Pennsylvania

96 Wis. 362 | Wis. | 1897

NewMAN, J.

The bill of exceptions is not certified to contain all the evidence. So there can be no review of the testimony given upon the trial. The special verdict is deemed to be absolute verity.

The issues made by the pleading were three: (1) "Whether proofs of loss had been furnished; (2) whether the plaintiff bad been guilty of fraud and false swearing relating to bis Joss; and (3) whether the insured property was incumbered. Questions covering each .of these issues were submitted to ;the jury, and each was found in favor of the plaintiff. But it appeared incidentally during the trial that among the property destroyed by the fire, and included in plaintiff’s claim, was a sewing machine, which the plaintiff held under an ex-ecutory contract of purchase for the agreed price of $60, on which he had paid $30. The defendant claimed that, ¡the plaintiff’s interest in this being other than the sole and 'Unconditional ownership, the whole policy was avoided "thereby. The court toolc the view that this only avoided the .policy as to the sewing machine, or, perhaps, that it proved that it wras not intended that the policy should cover that •machine. The policy did not, in terms, designate any specific articles of property, but described it generally by classes. The policy itself did not designate any particular sewing machine as the one to be protected by its insurance. Doubtless, it was intended to cover any sewing machine at that place of which the plaintiff was the sole and unconditional •owner at the time of the loss, and no other. The effect -must be that, if the plaintiff’s title to this machine was not ■the sole and unconditional ownership, this machine was •not insured by the policy. It could have no effect as to other property of which the plaintiff did have proper title. The property to be covered by the insurance is indetermh nate and not specific. It w’as intended to cover all the property of the classes named of which the plaintiff should be possessed with proper title, at the place designated, at any time during the life of the policy. If some articles of the •classes named, which were in plaintiff’s possession, should not be his property, it simply was not intended to insure such. That could not affect the contract as to other property in his possession of which he had proper title. The •contract, in this sense and to this extent, is certainly divish ble, and was intended to be so. The action of the court, in requiring the remission from the verdict of the value of the machine, removed all ground for. complaint in that regard by the defendant. Whether the plaintiff should have recovered for this item is not involved in this appeal. Certainly, there are many cases cited in the plaintiff’s brief which seem to support that contention; and there are some such cases in this court. Johannes v. Standard Fire Office, 70 Wis. 196; Carey v. Liverpool & L. & G. Ins. Co. 92 Wis. 538. This is the defendant’s first alleged error.

His second alleged error is that the evidence shows that no proofs of loss were either furnished or waived. The jury seems to have decided this contention against the defendant, and there certainly was evidence to support the verdict. The point seems to be, not that no proofs were furnished, but that the proofs furnished were insufficient. And it is claimed that further or fuller proofs were waived by the defendant, by the action of the defendant’s adjuster in denying all liability of the defendant for the plaintiff’s loss. That such denial of liability would, ordinarily, be held a waiver of further or any proofs of loss, seems to be well settled in this state. Gross v. Milwaukee M. Ins. Co. 92 Wis. 656, and cases cited. But it is said that it was agreed between the plaintiff and the adjuster that nothing which the adjuster might do or say should be construed as a waiver of any of the defendant’s rights. It is said that whether there was a waiver is a question of intention, and should be submitted to the jury. Oi’dinarily, when the act which constitutes a waiver is intentionally done, and is unequivocal in significance, it is, as matter of law, a waiver, irrespective of the intention of the parties. Rasmusen v. N. Y. L. Ins. Co. 91 Wis. 81; Schultz v. Caledonian Ins. Co. 94 Wis. 42; May, Ins. (3d ed.), § 508. The adjuster, in effect, gave the plaintiff unequivocal notification that, whatever the circumstances of the loss, the company declined to pay, on the ground that the policy bad never been in force, by reason of the existence of the mortgage. It was unequivocal notice that further proofs of loss would be useless. Parties are not required to do useless things; and the omission to do them does not prejudice rights. A waiver was shown by the.undisputed testimony. It did not need to be found by the jury. Stringham v. Cook, 75 Wis. 589; Murphey v. Weil, 89 Wis. 146.

The defendant also claims error in that the jury was permitted to find a general verdict, in connection with the special verdict, against its objection. .This court has held that it is not prejudicial, and so not error, to take a general verdict in connection with a special verdict, in a case where the special verdict disposes of all the controverted issues, so that it does not become necessary to resort to the general verdict in order to help out the special one. Ault v. Wheeler & W. Mfg. Co. 54 Wis. 300; Hoppe v. C., M. & St. P. R. Co. 61 Wis. 357. In such case the general verdict is merely a correct conclusion of law from the special findings, and neither benefits nor harms either party. In the instant cas© the special verdict disposed of all the controverted issues- and could not be aided by the general verdict.

No reversible error is found in the record.

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