Bruger v. Princeton & St. Marie Mut. Fire Ins. Co.

• Decision Date: 09 October 1906
• Citation: 109 N.W. 95,129 Wis. 281
• Court: Wisconsin Supreme Court
• Parties: BRUGER v. PRINCETON & ST. MARIE MUT. FIRE INS. CO.

129 Wis. 281

109 N.W. 95

BRUGER

v.PRINCETON & ST. MARIE MUT. FIRE INS. CO.

Supreme Court of Wisconsin.

Oct. 9, 1906.

Appeal from Circuit Court, Green Lake County; C. A. Fowler, Judge.

Action by John Bruger against the Princeton & St. Marie Mutual Fire Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action to recover $1,375, on a policy of fire insurance. The complaint was in the usual form. Defendant answered admitting the execution and delivery of the policy but claiming that it was void because the occurrence was produced by false representations of the plaintiff of facts material to the risk, which falsity was not known to the assurer till after the loss occurred. The answer also put in issue the allegations of the complaint as to the interest of plaintiff in the property; also as to the amount of loss sustained and as to giving notice of loss as required by the contract. Defendant pleaded, particularly, that when the policy was applied for plaintiff represented that the cost and value of the dwelling house was $1,800, whereas the value did not exceed $950; that it was expressly agreed that defendant should not be liable for more than two-thirds of the cash value of any building insured; and that not more than two-thirds of the cash value of any building would be insured by the company, which was well known to the plaintiff; that at the time application for the insurance was made plaintiff falsely and fraudulently represented to defendant that there was no existing insurance on the property, while in truth there was such insurance to the amount of $1,200, $700, being on the dwelling house, $100, on the household furniture, $25, on beds and bedding, $25, on family wearing apparel, $25, on provisions, and $325, on other items, said insurance being in the insurance company of the state of Illinois; that no notice of such existing insurance was given to the defendant and that such circumstance of existing insurance and that no notice to the plaintiff rendered the policy void by its terms. Defendant further answered that in furtherance of the fraud attempted as aforesaid, after the loss occurred, plaintiff delivered to the defendant a paper wherein he falsely swore that the dwelling house was worth $1,800, whereas it was only worth $950.

The facts aforesaid pleaded to defeat the policy on the ground of fraud were set forth as a counterclaim for rescission. The counterclaim was duly replied to. The jury rendered a general verdict in favor of the plaintiff. Proper motions and exceptions were taken to raise the questions discussed in the opinion.

The equitable issue raised by the counterclaim, after the court granted plaintiff's motion for judgment, was in form closed by findings of fact to the effect that the allegations of fraud were untrue; that there was insurance on the plaintiff's property when the policy in question was taken out, and that defendant was duly informed thereof; that plaintiff represented the dwelling house to have cost $1,800, and that it in fact cost that sum. Judgment was accordingly entered upon the verdict.Geo. B. Heaney and Thompson, Thompson & Pinkerton, for appellant.

Perry Niskern, for respondent.

MARSHALL, J. (after stating the facts).

Some complaint is made respecting the manner the court disposed of the cause of action set forth by way of counterclaim for a rescission of the contract of insurance. All the facts in regard thereto were properly pleadable as a defense at law, were so pleaded, and the issues raised in respect thereto were tried and closed by the verdict of the jury. Such being the case it does not seem necessary to consider any question as to the equitable defense.

It is undisputed that by the contract of insurance, unless appellant was notified when it was made of the then existing insurance on the property, that it was void under the provisions thereof on that subject. The issue as to that was submitted to the jury by the court and the finding was in respondent's favor. Appellant's counsel claim that the evidence is conclusive that no notice of the existing insurance was given to the company and therefore that the verdict should have been set aside and a new trial granted, as requested.

The evidence as to the existing insurance is substantially as follows: Respondent applied to Mr. Hardell, secretary of the appellant, for insurance, who introduced him to Mr. Swanke, its agent, through whom the policy was obtained. Both Hardell and Swanke testified, unequivocally, that respondent said to them that he had no insurance on the property; that there had been some but that it had run out. Respondent when first examined on the trial testified that he told such agent that he had insurance for one-half the amount with a Mr. Schumekosky, through whom he obtained a loan. On redirect examination, later, he said he told the agent that the previous insurance had run out. When examined under section 4096, Rev. St. 1898, before trial, he said he told Hardell that he had taken out insurance but “it run out, I don't know when,” and he said to the agent in answer to the question as to whether there was insurance on the property, “Yes, it run out I don't know when, it will run out I don't know when, or may have run out I don't know when.” One of respondent's daughters who was present when the application was made testified that her father said to the agent that he got $1,200, of insurance through Mr. Schumekosky when the house was in process of construction; that he could not otherwise borrow money to finish it; that after he got the house done he wanted it to be in the appellant company when the other insurance should run out. She further testified that her mother expressed surprise at the charge of $10, for the policy in question, saying that in the other company we just had $1,200, altogether and had to pay $18. Another daughter of respondent, testifyingon the subject of what occurred between respondent and the agent, said: “Pa said he has got insurance on the house for $1,200, but it shall run out, but he did not know when.” The evidence was undisputed that the agent asked the question in the written application as to whether there was any insurance on the property, and that it was answered, but that he answer was not written down. There are some other minor evidentiary circumstances relating to the matter, but none which materially change the situation indicated by the foregoing.

It must be conceded that the evidence is far from being satisfactory, but whether it be susceptible of conflicting reasonable inferences is quite another matter. If it be, then the court, upon familiar principles, properly left to the jury the labor of drawing the proper inferences.

The contention of counsel for appellant that respondent should be held bound by his admission made on two occasions that he informed appellant's representatives that the previous insurance had run out, we cannot approve in face of the evidence of contrary statements made by him, and other evidence somewhat supporting the latter. This court upon a careful consideration of the matter in Montgomery v....