Worachek v. New Denmark Mutual Home Fire Insurance

102 Wis. 81 | Wis. | 1899

Winslow, J.

The policy in question here is not a standard policy, but was issued by a township mutual insurance company, and hence the provisions of law which govern the standard policy do not apply to the present case. Stats. 1898, sec. 1941 — 64.

1. The first question of the special verdict-asks the jury whether the soliciting agent knew when he took the application that the plaintiff had used, and intended to continue using, a steam engine within 200 feet of the insured property. In submitting the question, the court charged the jury as follows-: “Now, the only testimony bearing upon that is that of the agent and of the plaintiff’s husband who was present at the time this application was made. They both agree that Mr. Worachek, the plaintiff’s husband, told the agent that he had used that machinery there, and that it was his intention and purpose, or of the owners of the property, to continue using it. I think, so far as that question is concerned, there really can be no controversy.” This charge was certainly erroneous where it says that the insurance agent and the plaintiff’s husband both agree that the plaintiff’s husband told the agent that he had used the machinery there, because the evidence of the two witnesses named is directly in conflict on this proposition. They do agree, in substance, that plaintiff’s husband told the agent that they intended to use it in the future, but this is the extent to -which they agree. So, here, manifestly, is an incorrect statement of fact in the charge. It was duly excepted to, and, if it relates to a material question in the case, then it must constitute prejudicial error.

The purpose of the proof upon the subject of the agent’s knowledge of the engine and its location within 200 feet of the house was evidently to bring the case within the rule that if an insurer, with full knowledge of the existence of a fact or a condition of things which is contrary to some provision of the policy, nevertheless executes and delivers the policy, he will be held to have waived the condition, or estopped from asserting it. Schultz v. Caledonia Ins. Co. 94 Wis. 42; Johnston v. N. W. L. S. Ins. Co. 94 Wis. 117-121, and cases cited. This rule has been most frequently applied in cases where the agent was informed of incum-brances, or that the title was not absolute; but there is no. good reason for holding that it would not be equally applicable in a case where he knew when he took the application that steam machinery or inflammable articles were customarily used in or about a building, in violation of a condition of the policy. Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202; Wright v. Hartford F. Ins. Co. 36 Wis. 522. Rut it is almost universally held that the knowledge or information which will thus operate must be knowledge of an existing fact or condition of things, and not a mere statement by the insured of an intention to do some act in the future contrary to the conditions of the policy. Ostrander, Eire Ins. § 350. Such latter statement may or may not be carried out, and it manifestly stands on a different basis from a fact or condition existing to the knowledge of the insurer when the policy was issued.

’Applying these principles to the present case, it will be readily seen that it was not sufficient to create an estoppel or waiver of the condition against steam machinery that the agent saw a portable engine in the farmyard. Such sights are frequent and do not necessarily mean that it has been or is to be used where it stands. Nor was it sufficient for the insured, to state that he intended to use the engine at some time in that place. This latter would be but a mere statement of future intention, and not information of an existing fact or condition. So, it is clear that a judgment for the plaintiff cannot stand upon the mere finding that Wora-chek told the agent that they intended to use the engine where it stood, at* some time in the future. It may well be that if the engine was apparently permanently located in its position and so attached or capable of attachment to the feed mill that it would be apparent to the agent that it was customarily used in that place, and so had become really a condition, in which the premises had been and were expected and intended to remain for a considerable part of the time (especially if the agent were also informed of such facts by the parties), such facts would constitute knowledge of a fact, within the meaning of the law, which would estop the insurance company from setting up the condition against the use of steam machinery. Such facts do not appear in the verdict in this case, nor can we say that the evidence conclusively establishes them.

2. The circuit judge charged the jury with regard to the third question of the special verdict, as follows: “ Both the terms of the contract policy in question and the law require that in case of loss there should be entire honest dealing between the parties, and that the party who has sustained a loss shall not knowingly make any misrepresentation or false statement relative to the loss, in the proof of loss or in any examination which they may be submitted to by the company; and in this case it appears there was such an examination, and, if the parties did knowingly make any such misrepresentations or statement, it is part of their contract between them, as well as the law of the land, that it shall forfeit all rights under the policy.” To the latter part of “this instruction, exception is taken, because it states to the jury what the effect of their answer will be upon the plaintiff’s right to recover. There is ground for the objection, and doubtless the instruction will not be repeated upon another trial, but, as the case must be reversed upon the first ground stated, it does not become necessary to decide whether this point alone would necessitate reversal.

By the Qowrt.— Judgment reversed, and action remanded for a new trial.

BardeeN, J., took no part.