McKinney v. German Mutual Fire Insurance Society of Liberty

89 Wis. 653 | Wis. | 1895

Cassoday, J.

The defendant is justified in contending that the use of the stovepipe contrary to the provisions of the policy, as found, avoided the policy. Wilcox v. Continental Ins. Co. 85 Wis. 193, and cases there cited. The more important question is whether the defendant is in a position to make such contention available. It is not found, and does not appear, that the secretary, Bald, knew that the stovepipe was being used at the time he inspected the premises and issued the policy. But the court found in effect, as undisputed, that the secretary who succeeded him, Kemper, was upon the premises in the summer of 1890; that he then observed that the kitchen was in use; that he then told the-plaintiff that the use of the stove, with no stone or brick, chimney, would avpid the policy; that afterwards, and before the fire, the defendant made two assessments upon the premium note given by the plaintiff upon the said dwelling-house and its contents, amounting to $4.22, which the plaintiff paid. True, it is not found by the court or jury that Kemper, or any official of the company, knew that the stove- and pipe were so in use at the time such assessments were-made and paid, but Kemper testified in behalf of the defendant to the effect that he was on the premises July 8.. 1890; that he then saw there was a stove used in there, and the stovepipe running up through the roof, as mentioned: that he guessed they were using the stove about that time that he told the plaintiff that such use would annul the policy; that the plaintiff told him afterwards, and before the fire, that it was used two or three months in the year; that he told the plaintiff that such use of the stovepipe would? annul the policy; that since then the defendant had levied two assessments on the plaintiff, and he had paid the same. It further appears that the plaintiff paid an assessment of $4.16 November 18, 1891, and $8.06 December 16, 1892. Such evidence is undisputed. The making and collecting of those assessments by the defendant, with knowledge of the forfeiture, was a waiver of the same, and certainly estops, the- defendant from now taking advantage of such forfeiture. Dohlantry v. Blue Mounds F. & L. Ins. Co. 83 Wis. 181; True v. Bankers’ L. Asso. 78 Wis. 287; Jerdee v. Cottage Grove F. Ins. Co. 75 Wis. 345; Renier v. Dwelling House Ins. Co. 74 Wis. 89.

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