Wilson v. Minnesota Farmers' Mutual Fire Ins. Ass'n.

• Decision Date: 29 November 1886
• Citation: 36 Minn. 112
• Court: Minnesota Supreme Court
• Parties: HILL H. WILSON <I>vs.</I> MINNESOTA FARMERS' MUTUAL FIRE INSURANCE ASSOCIATION.

36 Minn. 112

HILL H. WILSON vs. MINNESOTA FARMERS' MUTUAL FIRE INSURANCE ASSOCIATION.

Supreme Court of Minnesota.

November 29, 1886.

The plaintiff brought this action in the district court for Douglas county, upon a policy of insurance issued by the defendant. In its answer the defendant pleaded that the applicant for the insurance falsely represented that the property was unincumbered, whereas in fact it was mortgaged. The reply, as amended on the trial, alleged that at the time of making the insurance the defendant had knowledge of the existence of the mortgage. The action was tried before Collins, J., and a jury, and plaintiff had a verdict. Defendant appeals from an order refusing a new trial.

Nelson, Reynolds & Treat, and Bruckart & Reynolds, for appellant.

Clapp, Woodard & Cowie, for respondent.

DICKINSON, J.

The appellant's first assignment of error is that the court erred in denying defendant's motion for a new trial. This is too general, and is of no avail. It is no assignment of error, within the meaning of the rule which contemplates a specification of the errors by reason of which the appellant asks a reversal of the order or judgment appealed from.

The second assignment of error cannot be sustained. Under the amendment made to the reply during the trial, it was competent for the plaintiff to show that the agent of the defendant knew, at the time the application was made, that the property was incumbered. The defendant, if chargeable with knowledge of the fact, would be deemed to have waived the conditions of the policy making a misstatement as to such fact to avoid the insurance. Shafer v. Phœnix Ins. Co., 53 Wis. 361, (10 N. W. Rep. 381;) 1 Wood, Fire Ins. § 90. If the agent, although not acting as such when the information was communicated to him, retained a recollection of the fact, and had it in mind when effecting this insurance, such knowledge would affect the principal. Lebanon Savings Bank v. Hollenbeck, 29 Minn. 322, (13 N. W. Rep. 145;) Wade on Notice, § 687, and cases cited. The evidence that a few days before the insurance the assured informed the agent who afterwards effected the insurance of the existing incumbrance was therefore admissible, even though that alone were deemed insufficient to charge the defendant with notice.

When the exception referred to in the third assignment of error was taken, the court qualified the instruction excepted to, and to the instruction as thus qualified no exception was taken.

It...