Metcalf v. Mutual Fire Insurance

132 Wis. 67 | Wis. | 1907

KeewiN, J.

The main, assignment of error relates to the sufficiency of the evidence to support the verdict. The action is grounded upon an oral agreement to insure. The plaintiff made the first payment and gave the undertaking required for future payments, binding himself to pay to the defendant his pro raía share of losses which might be sustained by the company and incidental expenses as required by the defendant. Defendant is a mutual fire insurance company organized under eh. 103, Laws of 18Y2. One of the defendant’s bylaws provides that any person desiring to insure with, the company shall make .application to the president and secretary of the coihpany. And upon such application being made in this case it is claimed by defendant that plaintiff made certain false representations to the effect that the property on which insurance was sought was not mortgaged; that no other party than plaintiff was interested in it; and that plaintiff was the owner in fee simple of the ground upon which the buildings stood. The application was in the form of a printed blank, and the president of the company asked the questions and claims to have written in the answers made by plaintiff. The property in question consisted of a dwelling house, household furniture, and live stock. The dwelling and part of its contents were destroyed by fire. The live stock was not destroyed. The loss was adjusted by defendant and the amount is not contested.

The jury found that at the time the application was made out and signed the plaintiff did not represent to the president of the company that the property described in the application was not mortgaged. This finding, we think, is supported by the evidence. The answer relied upon by defendant to support the contention that plaintiff did represent that the property was not mortgaged- is ambiguous. The question was: “Is the property mortgaged, and to what amount ? Is there any insurance by the mortgagee?” To this double question plaintiff answered “No.” Now it is very plain that the plaintiff may by this answer have intended to answer that there was no insurance by the mortgagee, and not to answer that the property was not mortgaged; and when this answer is read in connection with the other evidence in the case, it seems quite clear that this is what he intended by his answer upon this subject. At any rate the jury would be justified in so finding. Under the well-established rule there is sufficient evidence to support this finding.

The verdict as changed by the court establishes that at the time the application was signed the plaintiff did represent to the president of the defendant that no other party was interested in the property, and that another party was in fact then interested. But the jury found, which finding stands in the case, that at said time the president had information of such fact. Now the question arises whether the defendant, with information of the fact that another party was interested in the property, can make a contract to insure, accept the premium, and after loss avoid payment on the claim that plaintiff represented that no other person was interested. The jury having found, upon sufficient evidence, that the president of defendant was informed that plaintiff was not the owner in fee simple of the ground and that some person other than plaintiff was interested in the property, the question arises whether defendant can avoid the agreement to insure on the ground that it was induced t-o make the agreement by the representations of the plaintiff to the effect that no other person was interested in the property. The jury in finding that defendant had “information” obviously found and intended to find that defendant had knowledge of the facts referred to. Information is defined: “Knowledge acquired, derived, or inculcated, as by observation, or by reading or study, or in conversation.” Stand. Dict. 924. And notice is held to mean information by whatever means communicated; knowledge given or received. U. S. v. Foote, 13 Blatch. 418, 25 Fed. Cas. 1140. Prof. Pomeroy says that actual notice “is information concerning the fact ... directly and personally communicated to the party.” 2 Pom. Eq. Jur. (3d ed.) § 595. Actual notice is also said to be “that which consists in express information of a fact.” Prouty v. Devin, 118 Cal. 258, 50 Pac. 380; 5 Words & Phrases, 4840. So we think that under the finding of the jury the defendant was chargeable with notice or knowledge of the fact that some person other than plaintiff was interested in the property and was not justified in relying upon the representations of the plaintiff in that regard. The defendant was bound to use ordinary care and prudence and avail itself of the information at hand. Ordinarily such notice as would put a person of ordinary prudence upon inquiry is sufficient to charge the person with knowledge of such facts as he might by proper inquiry ascertain. Thomas v. Flint, 123 Mich. 10, 81 N. W. 936; Osborne v. Ala. S. & W. Co. 135 Ala. 571, 33 South. 687; U. S. v. Sliney, 21 Fed. 894; Walker v. Neil, 117 Ga. 733, 45 S. E. 387; Martel Somers, 26 Tex. 551; Collins v. Davis, 132 N. C. 106, 43 S. E. 579; Bolles v. Chauncey, 8 Conn. 389. So we think the defendant under the findings of the jury and the evidence must be charged with having acted upon its own’ judgment and not upon the representations of plaintiff. In Herron v. Herron, 71 Iowa, 428, 433, 32 N. W. 409, the court said:

“If plaintiff’s attorney was deceived or misled by the information communicated to him, it was because he chose to accept the naked statement of the one he was dealing with, rather than seek reliable information from the sources pointed out to him, where it could have been obtained. It is the province of courts of equity to afford relief to those who have been overreached by the artifice or cunning or deceit of others; but where one voluntarily refuses to resort to the sources of information to which he is referred, but chooses gather to accept the statements of the person with whom he is dealing, as to matters material to the trade, he should be held to have acted on his own judgment, and no relief should be granted him if it turns out that the statements were false.”

With, the information the president of defendant had, nnder the repeated decisions of this court he was not justified in relying upon the representations of the plaintiff to the effect that no other person was interested in the property. Mamlock v. Fairbanks, 46 Wis. 415, 1 N. W. 167; Connor v. Welch, 51 Wis. 431, 8 N. W. 260; Prince v. Overholser, 75 Wis. 646, 44 N. W. 775; Warner v. Benjamin, 89 Wis. 290, 62 N. W. 179; Farr v. Peterson, 91 Wis. 182, 64 N. W. 863; Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932; Standard Mfg. Co. v. Slot, 121 Wis. 14, 98 N. W. 923; J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231.

Error is assigned upon the exclusion of evidence offered to the effect that the representations made by plaintiff induced defendant to enter into the contract to insure. Erom what has been said it follows that this evidence was properly ■excluded.

We find no reversible error in the record, and think the judgment below is right and should be affirmed.

By the Oourt. — The judgment of the court below is affirmed.