Wilcox v. Continental Insurance Co. of New York

85 Wis. 193 | Wis. | 1893

Cassoday, J.

This is an action at law upon a contract in the form of a policy of insurance. There is no attempt to reform the contract by reason of any mistake or fraud or otherwise. True, it is alleged, in effect, that in making the contract “ the defendant fraudulently suppressed and concealed from this plaintiff the fact that said policy was to and did contain ” the provision quoted in the foregoing statement. No facts are alleged, however, indicating such suppression or concealment. The most that can be inferred from the facts alleged is that, in making the contract for the insurance, the defendant’s agent did not inform the plaintiff that the policy to be sent would contain such a provision, and that it was sent without any explanation that it did contain such a provision. The policy, which is made a part of the complaint, purports to be the “ standard fire insurance policy of the state of Wisconsin,” which we understand to be a policy in the form prepared by the insurance commissioner, and filed in his office, as provided in ch. 195, Laws of 1891. Certainly the complaint contains no allegation that the policy in question is not such a policy, nor that the provision quoted is not contained in the policies usually issued by the defendant, and, besides, the act made it a penal offense for the company to issue any other form of policy. There is no fact alleged which could tend to mislead the plaintiff, or prevent him from reading the policy as soon as he obtained it; and from what has been said it may be fairly inferred that the parties contracted with reference to the policy upon which the action is brought.

The defendant sent the policy to the plaintiff eighteen days before the fire. It appears that the plaintiff received the policy about the time it was so sent. Upon such receipt of the policy the contract of insurance was complete in all its terms, and binding upon both parties. The plaintiff accepted it with all its conditions and limitations. In the absence of any fraud or mistake, he was, on general principles and authority, conclusively presumed to know its contents. Fuller v. Madison M. Ins. Co. 36 Wis. 599; Herbst v. Lowe, 65 Wis. 321; Bonneville v. Western Ass. Co. 68 Wis. 298; Hankins v. Rockford Ins. Co. 70 Wis. 5, Quinlan v. P. W. Ins. Co. 133 N. Y. 365. In this last case it was, in effect, held that the fact that the assured was ignorant of the conditions printed in the policy of insurance of the standard form pi-escribed by the statute of that state did not prevent the forfeiture by reason of his failure to comply with such conditions, since the conditions ..were part of the contract, and hence that he was bound to take notice of them.

The clause of the policy quoted declares, in effect, that the entire policy shall be void in case the assured had; or should procure any other insurance on the property covered by the policy, or incumbered the same by chattel mortgage, “unless otherwise provided by agreement indorsed thereon or added thereto.” There is no pretense of any such agreement indorsed thereon, or otherwise, and such prior insurance and chattel mortgage are admitted in the complaint. Such being the facts, it follows, from the authorities cited, that the policy was void in its inception, unless the condition was waived by the company. See, also, O' Brien v. Home Ins. Co. 79 Wis. 403; Bosworth v. Merchants' F. Ins. Co. 80 Wis. 393. Counsel for the plaintiff seem to think that upon the facts stated the defendant had waived the breach of the conditions named, and rely upon Alkan v. N. H. Ins. Co. 53 Wis. 136, and Vankirk v. Citizens' Ins. Co. 79 Wis. 627; but the clause of the policy under consideration in each of those cases was entirely dif-fere.nt from the one here in question. Besides, the defendant should not be held to have waived breaches of which it had no knowledge. It is true, as claimed by counsel, that had the plaintiff made a written application for the insurance in question, and falsely stated therein that there was no prior, insurance or incumbrance, then the defendant, to make such misrepresentations available as a defense, would have been obliged, under the statute, to “attach to such policy, or indorse thereon, a true copy of any application or representations of the assured, which by the. terms of such policy are made a part thereof ... or referred to therein,” or be precluded from disproving the statements so made in such application upon the trial. Sec. 1945a, R. S.; Dunbar v. Phenix Ins. Co. 72 Wis. 492; Stanhilber v. Mutual M. Ins. Co. 76 Wis. 290. The argument here is to the effect that the defense is based wholly upon a supposed “ implied false representation ” made by the plaintiff as to the nonexistence of such prior insurance and mortgage; and hence, in analogy to the rule under the statute, the defendant should be precluded from proving the same. But we do not understand such to be the defense. On the contrary, we understand the defense to be based upon the strict terms of the contract, which, as already indicated, is to the effect that the policy should not be operative at all in case of such prior insurance or mortgage, unless by agreement in writing attached to or indorsed upon the policy, as mentioned.

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