Copp v. German-American Ins. Co.

• Decision Date: 08 February 1881
• Citation: 8 N.W. 127,51 Wis. 637
• Parties: COPP v. GERMAN-AMERICAN INS. CO.
• Court: Wisconsin Supreme Court

51 Wis. 637

8 N.W. 127

COPP

v.GERMAN-AMERICAN INS. CO.

Supreme Court of Wisconsin.

Filed February 8, 1881.

Appeal from circuit court, Monroe county.

Action upon a policy of insurance against fire on a mill and machinery in Prescott. The policy was issued by the defendant company to Redman, Cross & Co. Loss (if any) was made payable to the plaintiff as his interest should appear. The insurance was for one year from December 2, 1875, and the insured property was totally destroyed by fire September 20, 1876. The interest of the plaintiff in the property exceeds the sums for which it was so insured. The policy is accompanied by an application of Redman. Cross & Co. for the insurance, which contains about 70 printed questions, and the answer of the applicants thereto, relating to the location, description, and modes of use of the insured property. At the head of these questions we find the following: “This application to be filled up and signed by the applicant, and the same to be considered as his description of the premises, and forming a part of the contract of insurace and a warranty on his part.” In the first paragraph of the policy, after a general description of the insured property and a statement of the sums for which it is insured, are these words: “Special reference being had to application and survey, which is hereby made a part of this policy, and a warranty on the part of the assured.” The policy also contains the following stipulations: “If an application, survey, plan or description of the property herein insured is referred to in this policy, such application, survey, plan, or description shall be considered a part of this contract, and a warranty by the assured; and any false representation by the assured of the condition, situation, or occupancy of the property or any omission to make known every fact material to the risk, or an oath, valuation, or any misrepresentation whatever, either in a written application or otherwise, * * * * then, and in every such case, this policy shall be void.” Amongst other defences, the answer alleges breaches of the contract by the insured, in respect to the stipulations contained in the following questions and the answers of the insured thereto contained in the application: “Do you agree to use only lard and tallow, or sperm and lard oils, for lubricating? Yes. Forcing pump. Is there one on the premises designed expressly for putting out fire? Yes. If so, do you agree to have it at all times in condition for use, with a proper supply of good hose on hand? Yes.” On the trial of the cause, after the testimony was all in, the court directed the jury to find for the defendant, which they accordingly did. The testimony is sufficiently stated in the opinion. The plaintiff has appealed from the judgment aganist him, entered pursuant to the verdict.J. S. White and Vilas & Bryant, for appellant.

J. W. Lusk, for respondent.

LYON, J.

The stipulations in the contract of insurance to be considered on this appeal, and which are contained in the questions propounded by the insurance company in the application and the answers of the insured thereto, are promissory warranties in the nature of conditions subsequent. It is the settled law in this state that any substantial breach of such stipulations in policies containing provisions like those in the policy in suit defeats the policy. Blumer v. Ins. Co. 45 Wis. 622;Redman v. Ins. Co. 49 Wis. 431. It is freely admitted by the learned counsel for the defendant company that, to work a forfeiture of the contract, the breach must be a substantial one. Such is, doubtless, the true rule of law. A trifling departure from the letter of the condition--a merely technical breach--or probably an accidental or involuntary failure to perform the condition not sanctioned by or known to the insured, which does not increase the risk, would not be held to defeat the policy. This rule is based on the presumption that the parties could not have intended by their contract that so serious a result should follow a failure to fulfil the strict letter of the stipulation when the risk was...