Ryan v. The Springfield Fire & Marine Ins. Co.
| Decision Date | 24 May 1879 |
| Parties | RYAN v. THE SPRINGFIELD FIRE & MARINE INSURANCE COMPANY |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Sheboygan County.
Action upon a policy of insurance against fire. There was a special verdict, the essential parts of which are recited in the opinion. There was also a general verdict for the plaintiff. Successive motions by the defendant, for a new trial, and for judgment in its favor upon the special verdict, were denied and judgment was rendered for the plaintiff, from which the defendant appealed.
Judgment reversed and remanded.
For the appellant, there were separate briefs by Nash & Schmitz, his attorneys, and Vilas & Bryant, of counsel, and oral argument by Wm. F. Vilas and L. J. Nash.
For the respondent, there was a brief by H. G. & W. J. Turner, and oral argument by W. J. Turner.
This action is brought upon an insurance policy of the appellant company, by the respondent as the mortgagee of one Miles McMahon, the owner of the premises upon which the building insured and destroyed by fire was situated, and for whose benefit the insurance was obtained.
The answer alleges, substantially, that at the time the insurance was obtained, a written application was made and signed by McMahon, which became a part of the policy, and in which certain representations were made respecting the property insured, which thereby became warranties, and which were material to the risk, and false. The jury found upon the question of fact, that McMahon did not sign the application but they also found that the questions were asked and answered "as stated in the written application." The evidence and question upon which this latter finding was made, were received and submitted without objection, and the finding itself is not excepted to; and therefore the variance, if any, between such evidence and finding and the allegations of the answer relating to the written application, is immaterial, and the answer in this respect may be treated as amended to conform to the proofs and finding. If the false representations complained of must have been contained in the written application, signed by McMahon, the insured, and thereby be strict warranties, in order to constitute a defense to the action, then perhaps such a variance would be incurably material; but a defense founded upon false and fraudulent representations material to the risk may be equally available as if founded upon a breach of warranty.
Contracts of insurance may be avoided for false and fraudulent representations, or other fraud, by which they were induced, the same as other contracts; and such a defense requires no other elements or stronger evidence of fraud in cases of insurance than in any other.
Representations of existing facts in respect to the property insured maybe false and fraudulent and material in praesenti, and avoid the policy of insurance, although not in writing, nor intended nor construed as warranties, and having no reference to future conditions of the property so as to be continuing representations or promissory warranties. Wood on Insurance, §§ 177, 178, 179; Prieger et al. v. Exchange Mutual Ins. Co., 6 Wis. 89; Keeler v. Niagara Fire Ins. Co., 16 Wis. 523; Kimball v. AEtna Ins. Co., 9 Allen 542.
Among the questions propounded to McMahon, and the answers thereto, were the following:
Q. "Is it [the property to be insured] incumbered by any mortgage or otherwise?" Ans. "Yes, it is." Q. "If so, for what amount?" Ans. "Three thousand dollars." Q. "Is the property incumbered in any way?" Ans. "Incumbered by mortgages." Q. "If so, state the nature of the same." Ans. "Yes, mortgaged to two parties for $ 3,000." Q. "Is such property steadily profitable?" Ans. "Yes."
The special findings of the jury upon these questions are as follows: 1. "Were there incumbrances on the premises affected by the insurance, at the time the insured, McMahon, procured the insurance sued for, to a greater amount than $ 3,000?" Ans. "Yes $ 4,551; the whole amount of mortgages." 2. "Did the defendant or its agents at that time know that such incumbrance by mortgages exceeded $ 3,000?" Ans. "No." 4. "Were such premises steadily profitable at the time of the procuring of such insurance?" Ans. "No." 26. "Do you find for the plaintiff or for the defendant in this action?" Ans. "We find in favor of the plaintiff."
Upon the findings, the defendant moved for judgment, which was denied, and judgment was rendered for the plaintiff for the amount of the insurance.
We think the above special findings are clearly inconsistent with the general finding for the plaintiff, and that the circuit court ought to have rendered judgment for the defendant upon its motion.
The special findings of fact so far control, that the general finding or verdict must be consistent with them. Sec. 32, ch 132, R. S. 1858; Lemke v. Milwaukee & St. Paul Railway Co., 39 Wis. 449. The jury were not asked to find, and did not find, whether the representations they so found to be false were material to the risk or not; and it is contended that the general verdict for the plaintiff should be held to have passed upon, and found in his favor, all other material issues not included in the special findings. This, as a general proposition, may be so, and it may be admitted that this general verdict should be treated as a finding upon the materiality of these false representations in favor of the plaintiff, or that such representations were not material; yet, the facts having been found by...
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