12 N.W.2d 57 | Wis. | 1943
Action commenced July 18, 1941, by L. A. Granzow for damage due to loss by fire of property insured by defendant against Oakland Mutual Fire Insurance Company. From a judgment for plaintiff awarding damages in the sum of $875, the defendant appeals.
The complaint shows that the plaintiff is a farmer residing in the town of Sumner, Jefferson county, Wisconsin; that the defendant is a mutual town fire insurance corporation; that on October 21, 1937, in accordance with its regulations, it issued a policy for $6,500 on items of real and personal property located on plaintiff's farm in Sumner, Jefferson county; that on January 14, 1941, a fire occurred that destroyed contents of the dwelling house, the value of which was $1,722.50; that he immediately reported the loss to the defendant corporation and filed formal proof of loss March 15, 1941; that no part of loss has been paid and that the defendant denies all liability.
The issuing of the policy and the existence of the property is established. Defendant answers that on the application for insurance there is no indication of the existence of any incumbrance; that because incumbrance existed, the ownership was not unconditional as required by the rules of the company and the contract is void; that at the time of securing the insurance, plaintiff's property was incumbered by four chattel mortgages; that plaintiff concealed that fact. It is *302 further alleged that an assessment due January 1, 1939, was not paid within the time prescribed by law; that at the time of the issuance of the policy the property was not within the limits of the territory in which defendant could lawfully issue its policy, and that the contract of insurance was thereforeultra vires.
After all the testimony had been taken, a motion joined in by both parties was made for a directed verdict. The jury was duly discharged and the trial court made as findings of fact: That the policy issued October 21, 1937, "was a renewal for a five-year period of a policy issued for three previous five-year periods on the same property;" that for "a period of about nineteen months prior thereto the plaintiff was a resident of Madison, Wisconsin; that during this period and until March 1, 1938, the farm was rented although the plaintiff had a substantial quantity of his household furniture and other personal property stored in and about the buildings on the premises;" that on March 1, 1938, plaintiff moved back to his farm; that no unsatisfied mortgages were then outstanding except "a mortgage of fifteen hundred ($1,500) dollars on cattle to one John W. Porter" and small mortgages on horses; that Mr. Porter who held the mortgage on plaintiff's cattle was also for over twenty years secretary and director of defendant; that as such secretary he wrote the contract; that "the said secretary passed on all risks, inspected properties, issued policies, adjusted losses and was in fact the actual manager of all the operations of the company." The conclusions of law are: That plaintiff was the unconditional owner of the property insured; that no concealment or deceit was practiced; that assessments were fully paid; that the failure to list the chattel mortgages neither increased the risk nor contributed to the loss and was in no way prejudicial to the defendant; that plaintiff is entitled to judgment in his favor. *303 The evidence sustains the findings made below. It shows an intimacy of the secretary of appellant with the affairs of the respondent that would make it quite impossible for any misleading of the appellant as to the character and location of the property insured. The contention that the policy is void because the respondent for nineteen months was living in Madison, outside the limits within which appellant was to issue its policies under sec. 202.06, Stats., is without merit. The application covered real and personal property on plaintiff's farm in the town of Sumner. There was no attempt to insure any of his property in Madison. Neither is there any reason for reopening the issue relating to the delinquency in payment of certain assessments. The trial court held correctly that since there was no effort on the part of appellant to treat the policy as void as a result thereof before the fire and the assessment having then been paid, there was a waiver of this condition.
The only other issue is whether the plaintiff can be held responsible for failing to list an incumbrance on his property on his application when the insurance agent had complete knowledge of such incumbrance and did not question the plaintiff about it.
The circumstances of this case are similar to those inTaluc v. Fall Creek Farmers Mut. F. Ins. Co.
"No oral or written statement, representation or warranty made by the insured or in his behalf in the negotiation of a contract of insurance shall be deemed material or defeat or avoid the policy, unless such statement, representation or warranty was false and made with intent to deceive, or unless the matter misrepresented or made a warranty increased the risk or contributed to the loss."
This was enacted to prevent an insured's losing the benefit of a policy when without fraud or misrepresentation on his part, and acting in good faith, he answers all questions asked him by the agent of the insuring company. There is ample evidence for the conclusion that the appellant's agent knew of the lien of the $1,500 mortgage and of the business of the respondent. As to the other mortgages, they appear to have been paid. The representative of the owner of those mortgages, a Mr. Logan, testified that the respondent did business in Madison and while there gave chattel mortgages on horses; that these horses upon which the witness' company loaned money were usually kept in Madison, and that when the witness talked to Mr. Porter about Granzow's business affairs, he showed the company's file on Granzow to Mr. Porter. As said, there was no attempt by respondent to insure any of his property located in Madison.
By the Court. — Judgment affirmed. *305
