Waldeck v. Springfield F.& M. Ins. Co.

• Decision Date: 18 October 1881
• Citation: 53 Wis. 129,10 N.W. 88
• Parties: WALDECK AND ANOTHER v. SPRINGFIELD F. & M. INS. CO.
• Court: Wisconsin Supreme Court

53 Wis. 129

10 N.W. 88

WALDECK AND ANOTHER

v.SPRINGFIELD F. & M. INS. CO.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from circuit court, Milwaukee county.

CASSODAY, J., dissents.--

[STATE REP.

Cottrill, Cary & Hanson, for appellants.

Finches, Lynde & Miller, for respondent.

COLE, C. J.

In the proofs of loss which were sworn to by the plaintiffs and served upon the company it was stated “that the fire originated from explosion of the boiler, fire ensuing afterwards.” On the trial it was proposed to show by various offers of evidence that there was a mistake in the proofs of loss in that respect, and that the fire originated from another cause. But the learned circuit court court decided that the proofs of loss were conclusive upon the plaintiffs, and that they were estopped from showing the mistake therein, unless prior to the commencement of the suit they had made out and served new proofs after having recalled the original proofs. The correctness of this decision is the only question to be considered. Now, while there is some conflict of judicial opinion on this question, it seems to us the better rule is, where the assured has made an honest mistake as to a material fact in his proofs of loss, to allow him to correct the error and show what the facts really are. In principle and reason we see no ground for saying that he is concluded and estopped from showing the mistake. In this case the circuit court must be understood as deciding, in effect, that the plaintiffs, before suit brought, might have recalled the original proofs and made new proofs correcting the mistake. Assuming that to be so, then what objection can there be to allowing the plaintiffs to correct the mistake even on the trial? The only possible objection which we can see to such a practice is that it might, perhaps, sometimes operate as a surprise on the insurer if the mistake was made known for the first time at the trial. But that objection could not be made here, for it was proposed to show that the agents of the company had ample notice of the mistake in the proofs of loss before the suit was commenced. Indeed, there is no pretence that the company was surprised by the proof offered, or would have been misled to its prejudice in defending the action on its merits, even if it had been received. It is true the complaint counts upon the proofs of loss made by the plaintiffs and received by the defendant on the fifteenth of July, 1880. But if it had been shown that these proofs were erroneous it would have amounted to nothing more than a variance, which should be disregarded, under section 2669, Rev. St.

On the general proposition as to whether the assured may show that an honest mistake has been made in the proofs of loss as to a material fact, Mr. Wood, in his work on Insurance, states the rule as follows: “When the assured has erroneously stated certain facts in his proofs of loss, without any fraudulent intent, as to the quantity of property destroyed, or their value, when the cost thereof is only stated in the proofs, as required by the insurer, or as to the occupancy of the property at the time of the loss, or in reference to other insurance, he may show that the proofs are erroneous, and what the facts really are.” Section 427. In Parker v. Amazon Ins. Co. 34 Wis. 364, this court affirmed the doctrine that an honest mistake in the proofs of loss as to the ownership of the property destroyed, though sworn to, was not fatal to a recovery. In that case the proofs were made out by the agent of the company, and sworn to by one of the owners, who testified on the trial that he did not know what they contained. The mistake there was made under circumstances quite like those in the present case, according to some offers of evidence made. But the principle of the Parker Case was recognized in Stache v. Ins. Co. 49 Wis. 89;Dogge v. Ins. Co. Id. 501.

In McMaster v. Ins. Co. 55 N. Y. 220, this question is very clearly and ably discussed in the opinion. There the proofs of loss, verified by the assured, contained a statement that there was other insurance at the time of the issuing of the policy. The court decided that this did not estop him from showing that there was a mistake in that respect. Judge Folger, in giving the opinion, says: “The proofs of loss are not part of the contract of insurance, nor a part of any contract. The contract of insurance requires that they shall be rendered, but it does not make them, when rendered, a part of itself, as sometimes an application for insurance is made. They are the act or declaration of one of the parties to a pre-existing contract, in attempted compliance with its conditions. The other party to the contract is not a party to this act or declaration, takes no part in making it, does not assert that it is a true statement, and is not bound thereby. The instrument which makes the proof of loss may be amended by the insured at...