Cayon v. Dwelling-House Ins. Co. of Bos., Mass.

• Decision Date: 22 March 1887
• Citation: 32 N.W. 540,68 Wis. 510
• Parties: CAYON v. DWELLING-HOUSE INS. CO. OF BOSTON, MASS.
• Court: Wisconsin Supreme Court

68 Wis. 510

32 N.W. 540

CAYON

v.DWELLING-HOUSE INS. CO. OF BOSTON, MASS.

Supreme Court of Wisconsin.

March 22, 1887.

Appeal from circuit court, Brown county.

Vroman & Sale, for respondent.

Ellis, Green & Merrill, for appellant.

ORTON, J.

The defenses to this action on the policy of insurance, set up in the answer, are as follows: (1) That the fire and loss occurred or were caused by the willful act and procurement of the plaintiff; (2) that the plaintiff fraudulently concealed the fact that the building or dwelling-house to be insured was and had been used as a cooper-shop; (3) that the plaintiff in his proofs of loss fraudulently overestimated the value of the property insured; and (4) that there was not annexed to the proofs of loss the certificate of a magistrate nearest to said fire, as required by the policy. The first and second defenses were negatived by the findings of the jury, and such findings were clearly warranted by the evidence. As to the third defense, the jury found that the plaintiff “ knowingly and intentionally stated in the proofs of loss the amount of loss and damage greater than it actually was,” but “ not with intent to deceive or defraud the defendant.” It is ingeniously argued by the learned counsel of the appellant that, these findings being contradictory, the first shall prevail, and the second be rejected. Why not reverse the proposition, and reject the first, by the rule that a later statute repeals an earlier one, or the last judgment reconsiders and reverses or overrules a former one? But are these two findings repugnant to each other? It is plausibly argued by the learned counsel that knowingly and intentionally stating the amount of the loss greater than it actually was must have been with intent to deceive or defraud. The jury may have thought that the first finding (which was previously prepared for them by the court or counsel) meant that the plaintiff knowingly and intentionally stated the amount of the loss, which they now found, to be greater than it actually was; in other words, that such statement of the amount was his best and honest judgment, but it was greater than it actually was. The language is peculiar. It would not seem to mean that the plaintiff knowingly and intentionally overestimated the value of the property or the amount of the loss. But be this as it may, the first finding on this question comes short of such a fraud as affected the validity of the policy, or the plaintiff's right to the stipulated amount to be paid in case of total loss. The policy covered the building and its contents, and the controversy is mainly concerning the building alone, which was totally destroyed by the fire. In such a case the actual amount of the loss was immaterial, by virtue of the statute, (section 1943, Rev. St.,) which provides that the amount of insurance written in the policy on the real property destroyed “shall be taken conclusively to be the true value of the property when insured, and the true amount of loss and measure of damages when destroyed.” In view of this statute, (chapter 347, Laws 1874,) it was held in Thompson v. St. Louis Ins. Co., 43 Wis. 462, that the complaint need not state the value of the property when it was destroyed; and in Reilly v. Insurance Co., Id. 449, that a defense in the answer that the value of the property destroyed was less than that stated in the policy could not prevail against this statute; and in Bammessel v. Insurance Co., Id. 463, where the policy contained a provision that “all fraud, or attempt at fraud, by false swearing or otherwise,” should cause a forfeiture of all claim under the policy, that such a defense, in respect to the value of the property when destroyed, could not be made. In these cases, the chief justice, in his opinions, considered every view which could even plausibly be taken against the full effect of the statute, and reviewed the authorities claimed to have force against its application, and the question should have been taken as settled and disposed of during the existence of the statute.

It is not perceived how the company could have been influenced by any such overestimate to settle or compromise, or not to settle or compromise, the claim for the insurance so fixed conclusively by the statute; for in no case could the company be compelled to pay more, or could the insured be induced thereby to receive less, than the amount so fixed by law. In this case the agent of the company required of the insured no statement whatever previous to the issuing of the policy, and he made his own examination of the property, and his estimate of its value. The authorities cited by the learned counsel of the appellant do not seem to have any application to this case under our statute; and the circumstances in which such an issue might be claimed to be sometimes material, notwithstanding the statute, are not present in this case. This defense, therefore, cannot prevail under any construction of the finding of an overestimate of the value or loss.

But, within this defense, it is contended that the evidence showed the existence of a $50 mortgage upon the property when insured and when destroyed, and that such mortgage was not mentioned in the proofs of loss, but fraudulently concealed. The only proof of the existence of any such mortgage, or the particulars thereof, appears to have been as follows: ...