Schultz v. Caledonian Ins. Co. of Edinburgh, Scotland

• Decision Date: 22 September 1896
• Citation: 68 N.W. 414,94 Wis. 42
• Parties: SCHULTZ v. CALEDONIAN INS. CO. OF EDINBURGH, SCOTLAND.
• Court: Wisconsin Supreme Court

94 Wis. 42

68 N.W. 414

SCHULTZ

v.CALEDONIAN INS. CO. OF EDINBURGH, SCOTLAND.

Supreme Court of Wisconsin.

Sept. 22, 1896.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Emil Schultz against the Caledonian Insurance Company of Edinburgh, Scotland. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action upon a fire insurance policy, issued by the defendant upon the plaintiff's dwelling house and household goods, for $500. The plaintiff's title to the land upon which the house stood was a land contract, on which a part only of the purchase price had been paid. The policy contains a provision that it shall be void if the plaintiff's title to the ground is less than a fee simple, unless otherwise provided by agreement indorsed on or annexed to the policy. No such agreement was indorsed or annexed. It was urged in defense that the policy was void because of the plaintiff's lack of title. It was urged by the plaintiff that the defendant was estopped to make this defense, because it had taken his money and issued its policy with knowledge of the true condition of his title. Defendant denied knowledge of the condition of the title. This was the only question seriously controverted in the case, and the only question submitted to the jury. The jury found that the defendant's agent, who issued the policy, was informed of the true condition of the title before the policy was issued. On the verdict and undisputed evidence the court gave judgment for the plaintiff for the amount of the policy.H. W. Chynoweth, for appellant.

F. W. Houghton, for respondent.

NEWMAN, J. (after stating the facts).

It is not necessary to decide, in this case, whether the plaintiff's title to the ground on which his dwelling house stood was such as to satisfy the stipulation of the policy in that regard. The case seems to have been tried on the assumption that it was not. Perhaps the question is debatable. Some very respectable authorities hold such a title to be a fee simple within the meaning of such a stipulation in a policy of insurance. Loventhal v. Insurance Co. (Ala.) 20 South. 419, and cases there cited. It is abundantly settled, and the rule is, that if the insurer, with full knowledge of facts which would avoid the policy, nevertheless execute and deliver a policy, he is held to have waived the defect, and is estopped to assert it. 11 Am. & Eng. Enc. Law, 336, and cases cited in note 9; Miner v. Insurance Co., 27 Wis. 693;Mechler v. Insurance Co., 38 Wis. 665;Smith v. Insurance Co., 49 Wis. 322, 5 N. W. 804;Alexander v. Insurance Co., 67 Wis. 422, 30 N. W. 727;Renier v. Insurance Co., 74 Wis. 89, 42 N. W. 208. The agent who has power to take risks and issue...