Farley v. Spring Garden Ins. Co.
Decision Date | 12 March 1912 |
Citation | 148 Wis. 622,134 N.W. 1054 |
Parties | FARLEY v. SPRING GARDEN INS. CO. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Douglas County; Charles Smith, Judge.
Action by Peter Farley against the Spring Garden Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.
This is an action brought to recover upon a Wisconsin Standard Fire Insurance policy. The complaint alleges the corporate existence of defendant, the issuance of the policy by the terms of which plaintiff's building was insured in the sum of $700 and the furniture in the sum of $300, and that on March 14, 1911, and while the policy was in force, the property was destroyed by fire, which did not happen from any of the causes excepted in the policy; that the building was of the value of $1,000 and upwards, and the furniture of the value of $1,000 and upwards; that the plaintiff performed all the conditions on his part to be performed and made due proofs of loss; that defendant denied all liability under the policy and refused to pay, assigning as a ground and reason therefor that said building stood upon leased ground; that plantiff had no other insurance on the property, and by reason of the premises defendant became indebted to plaintiff in the sum of $1,000, which has not been paid. The answer admitted the corporate existence of the defendant, the issuance of the policy, and the destruction of the property by fire, and alleged that the defendant was induced to issue the policy, relying upon false representations to the effect that the plaintiff was the owner in fee of the land upon which the building stood, when, in fact, he was not the owner, which false representations by the terms of the policy rendered it void, and that no agreement had been made by the defendant waiving said condition in the policy. The court directed a verdict in favor of the plaintiff. Motion for a new trial was denied, and judgment rendered in favor of the plaintiff, from which this appeal was taken.W. B. Quinlan, for appellant.
C. R. Fridley, for respondent.
KERWIN, J. (after stating the facts as above).
It appears from the evidence offered by the plaintiff that in June, 1909, the defendant insured the property in question for one year, and at the time of making application for insurance plaintiff informed the agent of defendant who issued the policy that he did not own the land upon which the building stood, and stated to the agent the nature of his title. The policy contained the following provision: “This entire policy shall be void if the subject of insurance be a building on ground not owned by the insured in fee simple.” At the expiration of the year and in June, 1910, the defendant, through its agent, renewed the policy, and issued a policy to plaintiff upon the same property and delivered it to him through the mail, which is the policy in suit. No information was given to defendant subsequent to the issuance of the first policy and prior to the time the renewal policy was issued.
[1] It is contended by appellant that the policy was void because the building stood upon leased ground, and that, in order to admit evidence of estoppel, the plaintiff was bound to plead the facts showing estoppel. The action being upon the policy, a breach of the condition referred to rendering the policy void was matter of defense. Gans v. St. Paul F. & M. Ins. Co., 43 Wis. 108, 28 Am. Rep. 535;Redman et al. v. Ætna Ins. Co., 49 Wis. 431, 4 N. W. 591;Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 43 N. W. 731, 17 Am. St. Rep. 184;Denoyer v. First N. A. Co., 145 Wis. 450, 130 N. W. 475. It appeared upon the plaintiff's showing in making his case that the building stood upon leased ground, and the plaintiff then offered evidence which was received over objection to the effect that the defendant had knowledge before the first policy was issued that the building insured stood upon land not owned by plaintiff. It may well be that this evidence was offered out of order, and that plaintiff was not obliged to anticipate the defense, or offer any evidence of estoppel until defendant had made his proof on the subject of breach of the condition to the effect that the policy should be void if the building which was the subject of the insurance be on ground not owned by the insured in fee simple. 19 Cyc. 926; Gardner v. Continental Ins. Co. (Ky.) 75 S. W. 283. No error was committed in the admission of the evidence offered by plaintiff in making out his case.
[2] The principal contention of the appellant's counsel under this head seems to be that the evidence offered to show estoppel was not within the issues, because the plaintiff had brought suit upon the Wisconsin Standard policy, and to allow the proof would be to nullify the condition and practically eliminate it from the policy. The argument is ingenious, but unsound....
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