The respondents brought an action to recover for a loss sustained under a fire insurance policy issued to
The defenses set up in the answer are: (1) That a written application for the policy was made by the insured, and that in such written application the respondents stated that the insured premises were not incumbered by mortgage or otherwise; that by the terms of the policy the statements made in such written application are .warranties, and if false avoid the policy. The answer then alleges that at the time the policy was issued, and at the time such written application ivas made and signed by the respondents, the insured premises were incumbered bjr a mortgage for $5,000, which was a valid and subsisting mortgage upon the insured prqperty at the time the policy was issued, and so continued jto be until after the loss occurred, and that the insurance company had no knowledge of such incumbrance until after the loss. (2) That the policy contained the following provision: “If the interest of the assured in the property be any other than an absolute fee-simple title, or if any other person or persons have anjr interest whatever in the property described, whether it be real estate or personal property, or if the building insured, or containing the property insured, by this policy, stands on leased ground, or if there be a mortgage or other incumbrance thereon, it must be so represented to the company and so expressed in the written part of the policy; otherwise the policy shall be void.” And the answer then alleges “that on the 24th day of February, 1885, the plaintiff Charles F. Dunbar, with his wife, made, executed, and delivered to the First National Bank of Wausau, Wisconsin, a mortgage upon an undivided one-half interest of the property described in said policy or contract of insurance, to secure the payment to said bank by said Charles F.
The following facts were established on the trial: (1) That the policy in question and several others issued by the same agent were issued to the respondents as renewals of previous policies which had been issued upon the same property to C. F. Dunbar individually. (2) That, previous to the issuing of the policy in question, Dunbar had sold one half of the insured property to the respondent Stubbings, a resident of Chicago; that after such sale, and before the policy in question was issued to the respondents, Dunbar and his wife placed a mortgage for $5,000 upon the undivided half of the property still owned by Dunbar; that this mortgage was a valid mortgage, and remained on the property unpaid until after the loss occurred; and that the undivided half of the property insured, which was owned by Stubbings, was free from all incumbrances. (3) That the agent of the defendant company, previous to the issuing of the policy in question, spoke to Dunbar about continuing the insurance of the property, and he replied that he did not know that Stubbings desired to have his interest
Upon the trial in the circuit court, upon the motion of the counsel for the respondents, the court held that the company could not avail itself of any statements made in
"We are of the opinion that the copy of the application attached to the policy, not having the copy of the name of the applicant appended thereto, cannot be said to be a copy of such application, within the meaning of the statute. Certainly the signature of the applicant is a very material part of the instrument. The signature is the thing which gives force to the application, and, when signed with knowledge of its contents, is conclusive upon the insured. I suppose that no one would contend that under our statute (sec. 2675, R. S.) which provides that, “in an action . . . founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the
The fact that a copy of the application was not attáched to the policy when delivered to the plaintiff does not necessarily exclude the application from the case, if such application be necessary to the case of the insured. The only effect of not attaching a copy is that the insurance company is deprived of all right to introduce the same as evidence to make out its defense, or to disprove the statements made in such application if introduced by the plaintiff to sustain his action. If said sec. 1945a be applied to this case, it seems to us that the application must be excluded as evidence for any purpose for the defendant, but that the plaintiff may use it to show that an application was made by the insured, and that in such application there is a statement as to the title of the insui-ed property and as to the incumbrances thereon, and the answers, if any, made to such inquiry; and under the statute the insurance company is estopped from showing that such answers are false. In this view of the case, the defendant can make no defense on the ground that the plaintiffs did not disclose the alleged
The object of the statute was to avoid the difficulties which frequently surrounded the insured in making out a case against the insurance company, when written applications were made for the policy and the statements made in such applications were made warranties by the terms of the policy. These written applications were usually gotten up in the manner that this one was. The agent of the company fills it up, presents it to the applicant, he signs it, and generally without any definite knowledge of what it contains, and the company retains it in its- possession- until a loss occurs, and then produces it to prove that some false statement was made in it which avoids the policy. This statute says to the company: You must attach a copy of such application to the policy, and deliver it.to the assured with the policy, or you shall be estopped from alleging that anything stated therein by the applicant is false. ETo copy having been delivered in this case, the statement in' the application that there were no incumbrances on the property at the time of the insurance is, for the purposes of this case, conclusively presumed to be true.
It is further urged by the learned counsel for the company that, treating the case as though no application in writing had been made for the insurance and no questions asked as to the incumbrance, still the policy is void under the condition in the policy itself which. is quoted above. "We do not determine the question whether this policy would be void, if no written application for the insurance had been made and no inquiries in regard to incumbrance had been made by the company before or at the time the policy was issued, because the insured did not of his own motion in
We think the verdict in this case should be sustained upon another ground. Treating the application as in the case for all purposes of the defense, in such case it-clearly appears that the answer to the question as to incumbrances was inserted in such application by the agent of the company upon his own motion and without inquiry of or authority from the insured. In such case this court has held, and we think correctly, that the insured is not concluded by such answer; and, if it be false, its falsity must be treated as the mistake of the company, and the company cannot avoid the polio}' by reason of such mistaken statement of its own agent. In such (jase the answer must be considered as either stricken from the application, and the question treated as not answered, or the answer be treated as true for the purpose of determining the rights of the parties to the action; and, in either case, it -is very clear that the plaintiff should recover. The following cases in this court hold that the mistake made in the answer to the interrogatory cannot be charged as the fault of the insured, and he is not bound by it: Parker v. Amazon Ins. Co. 34 Wis. 363, 370; Mechler v. Phœnix Ins. Co. 38 Wis. 667; Redman v. Hartford F. Ins. Co. 47 Wis. 100.
Treating the case most favorably to the company, and the case must stand as though the question as to incum-brances remained unanswered. In that state of the case we have the fact that an application in writing was made for this insurance; that various inquiries were made in such
In this case there is no pretense that there was any fraudulent suppression of the fact that there was a mortgage upon the property. Had the attention of the plaintiff Dunbar been called to the matter, it is evident that he would have
Upon the facts in this case, we think the circuit court properly directed a verdict for the plaintiff.
By the Court.— The judgment of the circuit court is affirmed.