Costello v. Grant Cnty. Mut. Fire & Lightning Ins. Co.

• Decision Date: 05 November 1907
• Citation: 133 Wis. 361,113 N.W. 639
• Court: Wisconsin Supreme Court
• Parties: COSTELLO v. GRANT COUNTY MUT. FIRE & LIGHTNING INS. CO.

133 Wis. 361

113 N.W. 639

COSTELLO

v.GRANT COUNTY MUT. FIRE & LIGHTNING INS. CO.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, Richland County; Geo. Clementson, Judge.

Action by Thomas H. Costello against the Grant County Mutual Fire & Lightning Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss complaint.

Appeal from a judgment of the circuit court for Richland county in an action upon a contract of insurance. The plaintiff requested one Moody, an insurance agent, on January 2, 1905, to procure for him fire insurance upon two certain buildings, $650 upon one, and $350 upon the other, and Moody thereupon filled out an application for such insurance in the Wisconsin Mutual Fire Association of Lancaster for the term of one year from the 2d day of January, 1905, dated the application on January 2, 1905, and the same was signed by the plaintiff. This application was forwarded by Moody to the secretary of the Wisconsin Mutual Fire Insurance Company of Lancaster, the risk was rejected by him, and application returned. Moody thereupon, and without consulting the plaintiff, and on or about January 5, 1905, forwarded this application to the secretary of the defendant company, and the defendant accepted the application on January 10th. The property sought to be covered by the insurance burned on January 11th. The defendant claims that on January 10, 1905, it accepted this application, the insurance to take effect January 12, 1905, and run three years from that date, and that with reference to the term of commencement of risk the application so read at the time it reached the defendant's office. The policy was unaccountably delayed in transmission and did not reach the insured until January 17, 1905.

The whole contest turned upon the question whether or not the defendant accepted this risk to begin on January 2, as described in the application originally, or whether the defendant accepted the risk to begin January 12, 1905. Upon conflicting evidence the jury returned a special verdict finding: That the application at the time it was received by defendant's secretary was for insurance “for the term of one year from the 2d day of January, 1905,” and that it did not then read for the term of one year from the 12th day of January, 1905, as it was found thereafter to read. That the secretary and president of the defendant insurance company accepted said application for insurance as it was written at the time it was received. That Moody was an agent of the defendant company at the time he mailed to defendant's secretary the application for insurance. That the plaintiff applied to Moody as an insurance agent to insure the property that was burned in some company of which Moody was agent, and the court added a finding based on uncontroverted evidence that the secretary and president of the defendant company did accept the application on January 10, 1905, and before the fire. The plaintiff first began a suit in equity to reform the application for insurance and the policy of insurance issued thereon so that the term of insurance should begin January 6, 1905, instead of January 12, 1905, and, to recover upon the policy so reformed, averred a mistake of the secretary of the defendant company who wrote the policy in so dating it as to take effect January 12, 1905. This was determined against the plaintiff, and one of the findings of fact was that the application asked for such insurance for the term of one year from the 12th day of January, 1905. Within one year after entry of judgment in the equity suit, the plaintiff, upon cause shown, made application to the court in which findings were made, and thereupon the court struck out the foregoing item of the findings, and also struck out the eleventh finding, which seemed to pass upon the merits of the case, and substituted, instead, a finding as follows: “The testimony in this case is insufficient to sustain the demand of the plaintiff's complaint that the application for the policy and the insurance policy should be amended as prayed for.” By the amendment this appeared to be the ground for dismissing the complaint.Bushnell, Watkins & Moses, for appellant.

Burnham & Shontz, for respondent.

TIMLIN, J. (after stating the facts as above).

The amendment of the findings in the equity suit brought to reform the application and policy in question was within the power of the court below. Keep v. Sanderson, 12 Wis. 352, marg.; section 2832, St. 1898. The dismissal of a complaint in a suit in equity on the ground that the plaintiff has mistaken his remedy and should have proceeded at law is no bar to the legal action thereafter commenced. Cramer v. Moore, 36 Ohio St. 347;Lore's Lessee v. Truman, 10 Ohio St. 45;Pfennig v. Griffith, 29 Wis. 618. If it is at all material to the questions involved in this appeal, the jury was authorized to infer from the acts of Moody, in transmitting the application of the plaintiff and the defendant's acceptance of the application, that Moody was an agent of the defendant. Section 1977, St. 1898, as on and prior to January 10, 1905; John R. Davis L. Co. v. Hartford F. Ins. Co., 95 Wis. 226, 70 N. W. 84, 37 L. R. A. 131. It...