Parker v. Amazon Insurance

34 Wis. 363 | Wis. | 1874

Cole, J.

I. The first exception relied on for a reversal of the judgment is to the ruling of the court in admitting in evidence the letter purporting to have been written by Holland, superintendent of the defendant company, to its agents in Oshkosh, in respect to the loss. It was claimed in the court below, and the point is urged here, that there was no sufficient proof of the handwriting or signature of Holland to entitle the letter to be received in evidence. We deem this position clearly unsupported by the record. The witness Berry, who testified that he was the state agent of the company, said that he knew Holland, and had had correspondence with him; and thought the signature to the letter was genuine. He added that he knew nothing about the handwriting of Holland except from knowledge he had derived from correspondence with him for a year and a half upon business of the company. This is the substance of his testimony. And it was sufficient proof of the genuineness of the letter in question to entitle it to be received in evidence. This letter of Holland acknowledges the receipt of a report of Berry in respect to the claim of the assured under the policy in suit, and affords the strongest presumption, arising from the business correspondence, that it was written, or authorized to be written, by him. 1 Greenl. Ev., secs. 573 and 577.

II. The letter of Holland being admissible in evidence, it follows that there was no error in denying the motion for a non-suit on the ground that the plaintiffs had failed to make proper proofs of loss. For that letter denied all liability of the company to pay the loss, (1) because there was a subsequent policy on the same property, which had been taken without the permission of the defendant; and (2) because there was an over-insurance, and the risk was fully covered by prior policies. A denial of all liability on the part of the company upon these grounds was a waiver of all proofs of loss (Carpenter v. The Troy Fire Ins. Co., 4 Wis., 20; Fillips v. The Putnam Fire Ins. Co., 28 id., 472; McBride v. Republic Fire Ins. Co., 30 id., 562, and cases cited); although it is proper to add that such proofs of loss were actually made, and were put in evidence as a part of the defense.

III.. Another exception relied on is that taken to the ruling of the court in sustaining the objection to the question asked the witness Janes. This witness was the local agent to whom the plaintiffs applied for insurance. An application was made, which, it appears, was filled up in part by the plaintiffs, and partly by the agent on his own knowledge. The policy was issued to “ Parker & Smith ; ” and the complaint alleged, and the proof on the part of the plaintiffs was, that the firm was composed of Frank L. Parker, and Betsey L. Smith, and that they were the owners of the property insured. The policy referred to an application and survey No. 9719, as constituting a part of the contract and a warranty by the assured. There was, however, no application which corresponded with that number; but one was offered in evidence, No. 9716. In this application the owners of the property insured were stated to be Frank Parker and A. B. Smith, the husband of Betsey L.; and Janes was asked whether the policy sued on was issued on this application, for the evident purpose of showing that there was a false representation in regard to the ownership of the property, and thus defeat a recovery. This question was objected to, and ruled out, as we think, properly under the facts of the case. For the positive and uncontradicted evidence shows that neither Parker nor A. B. Smith, nor any other person authorized to answer questions for tbe owners, ever stated or represented to the agent that the property was owned by Frank Parker and A. B. Smith. On the contrary, it abundantly appeared that the answer to question six in the application, as to ownership, was filled up by the agent himself, and be alone was undoubtedly responsible for the mistake. This being the case, we think, upon principle and upon authority, the mistake of the agent in that particular should not avoid the policy. He did not ask the assured as to the ownership of the property, but assumed to fill up the application on his own knowledge, without consultation with the applicants; and therefore the mistake of the agent should be deemed that of the company itself. Miner v. The Phœnix Ins. Co., 27 Wis., 693. The assured made no affirmations or representations of any kind in the application, respecting the ownership of the property, and therefore whatever the application contained upon that point was immaterial, and should not avoid the contract. Eor this reason there was no error in excluding the question asked the witness upon the subject.

IY. It is insisted that it was error to exclude the question asked the witness A. B. Smith about what extra insurance there was upon the property besides the defendant’s policy, at the time the loss occurred. If there was any error in excluding the question in the first instance, it was cured by the witness fully answering it at a subsequent stage of the trial.

Y. The court, at the request of the defendant, charged that if the jury should find from the evidence that Parker and A. B. Smith falsely represented to the company that they constituted the firm of Parker & Smith, and that they were the owners of the property, and that the contract was entered into upon the faith and credit of such representation, when in fact Smith was not a member of the firm, and had no interest in the property, or that they misrepesented that Smith was a part owner, then there could be no recovery. The court was further asked to instruct the jury, that if they found there had been any fraud or false swearing on tbe part of tbe plaintiffs in regard to tbe insurance, tbe membership of tbe firm, or ownership of tbe property, or the loss under tbe policy, before tbe trial, then this would avoid tbe contract. This was, we think, properly refused. The court bad previously correctly directed the jury upon tbe law applicable to the evidence. And tbe only possible relevancy this instruction bad was to a mistake in the proofs of loss. These proofs were subscribed and sworn to by Parker, and set out that Parker and A. B. Smith constituted the firm and were the owners of tbe property. Tbe proofs were made by tbe agent Berry, who did not remember whether Smith or Parker gave him information as to the members of tbe firm. It appeared that Parker was in a burry when the proofs were subscribed and sworn to by him, and there is a conflict upon tbe point whether the proofs were read to him. He says that he left the matter to Berry, and he supposed the proofs were all right, and both he and Smith deny telling the agent that the firm consisted of Parker and A. B. Smith. Now, if he made an innocent mistake in swearing to the proofs which did not accurately state the owners — if he did not, as he says, know what they contained or any thing about them,— that mistake, although made under oath, should not prevent a recovery. And the error in the instruction is, that it does not make the proper discrimination or distinction as to the consequences which should flow from willful perjury and an innocent mistake in swearing to the proofs in that • manner.

We have already observed that all proofs of loss must be regarded as unnecessary, in view of the letter of Holland, which denied the liability of the company on other grounds, stated by him. This disposes of the exception taken to the refusal of the court to give the second instruction asked by the defendant.

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