Hunt v. Dollar
| Decision Date | 09 February 1937 |
| Citation | 224 Wis. 48,271 N.W. 405 |
| Parties | HUNT v. DOLLAR et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.
Affirmed.
Action by Benjamin Hunt against Fred C. Dollar and his insurer to recover for injuries sustained by the plaintiff by negligence of Dollar in so driving his automobile upon the highway as to collide with plaintiff's wagon. The defendant insurer by answer alleged breach of the contract of insurance by Dollar that voided the policy. Upon trial of the issue thus raised, the jury found that Dollar did not breach the contract. Upon motion of the insurer the court granted judgment notwithstanding the verdict dismissing the complaint as to the insurer. From this judgment the plaintiff appeals. The material facts are stated in the opinion.Allan V. Classon, of Oconto (G. F. Clifford, of Green Bay, of counsel), for appellant.
Chadek, Cornelisen & Denissen, of Green Bay, for respondents.
The plaintiff sued the defendant driver of an automobile on a highway and his insurer to recover for injuries sustained when his wagon, through negligence of the insured, was struck from behind by the automobile.
After first joining with the insured in an answer merely denying the insured's negligence and denying liability on that ground, the insurer obtained leave of court, upon notice and supporting affidavits, to file a “supplemental answer” in which it denies liability under the policy on the grounds that the insured violated his contract of insurance (a) by making a false and untrue statement as to material facts concerning the accident involved; (b) by inducing certain witnesses to give false and untrue written statements as to material facts concerning the accident; and (c) by himself falsely testifying on adverse examination as to material facts concerning the accident. Coupled with each of (a), (b), and (c) is the statement that the insurer relied on the several statements in deciding it had an honest and adequate defense. The insurer by its supplemental answer demanded that the court adjudge the contract of insurance void, that the plaintiff take nothing as against the insurer, and that the complaint be dismissed as to the insurer.
A separate trial to a jury was had upon the issue raised by the supplemental answer. Three questions were submitted to the jury inquiring (1) whether the insured “concealed or misrepresented any material fact or circumstance concerning the insurance or the subject thereof”; (2) whether the insured induced named persons to make false written statements as to material facts and circumstances concerning any such matter; and (3) whether the insured testified falsely on the adverse examination to any material fact or circumstance concerning any such matter. To each of these questions the jury answered “No.”
The questions submitted to the jury were framed to enable them to determine whether the insured violated paragraph P. of the insured's policy which reads as follows: “This entire policy shall be void if the assured has concealed or misrepresented any material fact or circumstance covering this insurance or the subject thereof; or in case of any fraud, attempted fraud or false swearing by the assured touching any matter relating to this insurance or the subject thereof, whether before or after a loss or accident.”
It is undisputed that the trial judge was right in holding that the insured made a false written statement, procured false written statements to be made by others, and falsified in his adverse examination as inquired by questions (1), (2), and (3) of the verdict. The appellant's contention is that, because the falsehoods did not go to occurrences at the time of the accident, but went only to the assured's drinking and to where he was prior to the accident on the night of its occurrence, they were not as to any “material fact or circumstance concerning the insurance or the subject thereof,” and therefore did not void the insurance contract.
The written statement made by the assured stated that the assured, a Mr. Edwards, and a Miss Nelson started about 9:30 p. m. and took a drive “around a short while” and “then went to a dance at Riverview,” a dance hall with a tavern in connection, arriving about 10 p. m.; that they left Riverview about 11 and drove to the home of the sister of the assured in De Pere; that they played cards there until about 3 a. m.; and that “we had absolutely nothing containing alcohol to drink all evening.”
The assured procured Edwards to make a written statement confirming in every particular his own written statement as to the matters above mentioned, and procured his sister living at De Pere to make a written statement that on the night of the accident the assured, Edwards, and Nelson called at her home about midnight; that she and her husband and the visitors played cards until the visitors left; that no liquor was served during the stay; and that none of the three showed any signs of intoxication.
It is undisputed that the assured was not at the home of his sister in De Pere at all during the night of the accident; that preceding the accident the assured with Edwards, two other men, Miss Nelson, and two other girls went in the assured's Ford automobile to at least six different roadhouses or taverns where intoxicating liquor was served to members of the party. The next last such place visited by the whole party is referred to as “Steckart's”; the last as “Hall's.” The assured admits that during the visits to these places he drank ten or twelve glasses of beer and four drinks of whisky out of a bottle. A witness with him gave testimony that would support the inference that the assured drank whisky at the bar at one of the places visited. From Hall's four of the party were driven to their homes. The assured drove up to the time the party reached Hall's. Members of the party objected to his driving when they left Hall's because of the manner in which he drove the car. In driving from Steckart's to Hall's he “drove sixty to sixty-five miles per hour”; he “went around, whizzed to scare them”; he “drove from side to side”; the members of the party “complaint about the manner he was driving.” Edwards drove from Hall's until the four were taken home. The...
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