46 Wis. 671 | Wis. | 1879
This action is brought upon an insurance policy of the appellant company, by the respondent as the mortgagee of one Miles McMahon, the owner of the premises upon which the building insured and destroyed by fire was situated, and for whose benefit the insurance was obtained.
The answer alleges, substantially, that at the time the insurance was obtained, a written application was made and signed by McMahon, which became a part of the policy, and in which certain representations were made respecting the property insured, which thereby became warranties, and which were material to the risk, and false. The jury found upon the question of fact, that McMahon did not sign the application; but they also found that the questions were asked and answered “as stated in the written application.” The evidence and question upon which this latter finding was made, were received and submitted without objection, and the finding itself is not excepted to; and therefore the variance, if any, between such evidence and finding and the allegations of the answer relating to the written application, is immaterial, and the answer in this respect may be treated as amended to conform to the proofs and finding. If the false representations complained
Contracts of insurance may be avoided for false and fraudulent representations, or other fraud, by which they were induced, the same as other contracts; and such a defense requires no other elements or stronger evidence of fraud in cases of insurance than in any other.
Representations of existing facts in respect to the property insured may be false and fraudulent and material i/n jormenti, and avoid the policy of insurance, although not in writing, nor intended nor construed as warranties, and having no reference to future conditions of the property so as to be continuing representations or promissory warranties. Wood on Insurance, §§ 177, 178, 179; Prieger et al. v. Exchange Mutual Ins. Co., 6 Wis., 89; Keeler v. Niagara Fire Ins. Co., 16 Wis., 523; Kimball v. Ætna Ins. Co., 9 Allen, 542.
Among the questions propounded to McMahon, and the answers thereto, were the following:
Q. “ Is it [the property to be insured] incumbered by any mortgage or otherwise?” Ans. “Yes, it is.” Q. “If so, for what amount?” Ans. “Three thousand dollars.” Q. “Is the property incumbered in anyway?” Ans. “Incumbered by mortgages.” Q. “ If so, state the nature of the same.” Ans. “ Yes, mortgaged to two parties for $3,000.” Q. “ Is such property steadily profitable?” Ans. “Yes.”
The special findings of the jury upon these questions are as follows: 1. “Were there incumbrances on the premises affected by the insurance, at the time the insured, McMahon, procured the insurance sued for, to a greater amount than $3,000?” Ans.-“Yes $4,551; the whole amount of mort
Upon the findings, the defendant moved for judgment, which was denied, and judgment was x-enderedfor the plaintiff for the amount of the insurance.
We think the above special findings are clearly inconsistent with the general finding for the plaintiff, and that the circuit court ought to have rendered judgment for the defendant upon its motion.
The special findings of fact so far control, that the general finding or verdict must be consistent with them. Sec. 32, ch. 132, R. S. 1858; Lemke v. Milwaukee & St. Paul Railway Co., 39 Wis., 449. The jury were not asked to find, and did not find, whether the representations they so found to be false were material to the risk or not; and it is contended that the general verdict for the plaintiff should be held to have passed upon, and found in his favor, all other material issues not included in the special findings. This, as a general proposition, may be so, and it may be admitted that this general verdict should be treated as a finding upon the materiality of these false representations in favor of the plaintiff, or that such representations were not material; yet, the facts having been found by the jury, the question of their materiality becomes one of law, arising from such facts so specially found to be true; and the general verdict, even with this enlarged interpretation of its scope and effect, will not be conclusive if clearly against law, but would be inconsistent with the special findings, from which the very opposite legal conclusion ought to be drawn.
In all cases where the facts are specially found by the jury or are without dispute, the question of the materiality to the
As to the argument of the learned counsel of the respondent, that the company, through its agents, took such action in respect to the proofs and adjustment of the loss, after full knowledge of the falsity of these representations, as waived their materiality, it is sufficient to say that the jury found no such fact, and the following question was propounded to the jury, at the request of the respondent, obviously for the purpose of affecting this question of waiver, which was answered in the negative: “ 24. At the time of the demand by the defendant of additional proofs of loss, and the furnishing of plans and specifications of the barn destroyed, had the defendant knowledge, by its agent or otherwise, of the additional incumbrances upon the two lots, exceeding $3,0003” Ans. “ No.”
Nothing further need be said to make it apparent that the circuit court erred in refusing judgment for the defendant, and rendering judgment for the plaintiff, upon the findings of the jury.
By the Court. — The judgment of the circuit court is reversed, with costs, and the cause is remanded with direction to enter judgment, upon the findings of the jury, for the defendant.