McBride v. Republic Fire Ins.

Cole, J. Tbe defense in this case rested mainly upon two grounds: first, that in the written application made by the plaintiffs they falsely represented and stated that they were the 'Owners in fee simple of the real estate upon which the store building was situated, whereas in fact the title was not in them: secondly, that they farther represented on the application that there was no incendiary danger to the property threatened or to be apprehended, while the plaintiffs well knew that a certain person, whose name is given in the answer, bad threatened and declared that she would burn the store and contents; and therefore, that there was such a breach of warranty in these two particulars as [566] would preclude a recovery on the policy. The fact- does not seem to be questioned that the application was filled up by J. E. McMullen, who was the agent of the company, and solicited the risk. And it was stated in the application that the plaintiffs were joint owners of the real estate- upon which the store was situated. The company, however, offered hr evidence a war-rantee deed to the plaintiff McBride, dated January 7th, 1868, showing that the title to the premises was in him and not in the plaintiffs jointly. But the plaintiff Faulkner was permitted to testify, against the objection of the company, that he stated to the agent, McMullen, when the application was filled out, the arrangement between him and his co-plaintiff in respect to the title to the real estate, and says-: “ I told him I was to acquire it through McBride, who furnished the store and the lot it stood on, and the capital also,, and I was to have half ; our contract was for three years, and I told McMullen what the contract was.” And, as bearing upon the part of the defense, the court, in its charge, directed the jury, in substance, that if the plaintiffs told the agent who made out the application the truth in regard to the title as it then was, but the. agent, without their knowledge, inserted in the" application that they were the owners in fee, then a recovery could be had, notwithstanding this misrepresentation in respect to the title. This portion of the charge was excepted to by the defendant. As this exception involves substantially the objection taken to the admission of the evidence above referred to, as well as the exceptions taken to the refusal of the court to give' the first two special instructions asked on the part of the defendant, these various exceptions will be considered together. "We are inclined to hold that the testimony of the witness, Faulkner,- was properly admitted. Its direct and manifest tendency was, of course, to prove that the plaintiffs informed the agent who filled up the application, the precise truth in regard to the' title to the real estate, and that such agent, without their knowledge, either through mistake or intentionally, stated [567] that the legal title was in them jointly, when, in faet, it was in McBride, for the nse and benefit of the firm. The evidence was intended to show, that there was a mistake in the written application upon this point, but that this mistake occurred through the carelessness or fraud of the company’s- agent. It may be said that the plaintiffs had no right to- trust the agent to write out their answers to the questions in the application, and that if they saw fit to do so, and he made a mistake, they are responsible for it, and must take the consequences of the misrepresentation in regard to the title. This view of the law was most emphati-cally disapproved by the circuit judge in his charge to the jury, and we fully concui in his opinion upon that subject. These agents are traveling through the eoxmtry soliciting applications for insurance. They frequently have occasion to deal with men unacquainted with the business of insurance, who, from the necessity of the case, rely, and have the right to rely, upon the superior skill and experience of the agent in filling up applications. And if the applicant states truly all the facts in respect to the title and his insurable inter'est in the property, and the agent inserts an incorrect answer in the application, either intentionally or otherwise, there is no- reason for holding that the assured is- bound by it. In such a case the mistake of the agent is the mistake of the company itself, and the- assured is not estopped from showing the falsity of the statement contained in the application. This doctrine in -effect has been recognized and enforced in a number of cases- which have come before this court. Miner v. The Phœnix Ins. Co., 27 Wis., 693, and the authorites there cited. Under the charge of the court, the jury must Rave found that the plaintiffs made no representation in regard to the title of land on which the store was situated, which was untrue, and that McMullen, either by design or carelessness, failed to insert the correct answers in the application. And this mistake or fraud could be shown by parol testimony, and the charge of the court upon that point is fully sustained by the Miner case; [568] In reference to the other ground of defense, the court charged the jury that if there was any incendiary danger fairly and reasonably to be apprehended, which was known to the plaintiffs, it was their duty to state it in the application, and inform the agent of it, and if they answered falsely in that regard, and a loss ensued, this would relieve the company from liability It is true, the court added that this incendiary danger must be real and substantial — one that necessarily enhanced the risk, and one which a man of ordinary prudence and caution would regard, and not mere idle talk or reports, which the applicant, if he knew about them, might be excused from repeating to the agent. The rumor about the threats made by the person mentioned in the answer was obviously of the latter character, and one which the plaintiff might well have disregarded as mere idle gossip. These remarks, it is believed, sufficiently dispose of all questions arising upon the two principal grounds of defense set up in the answer. But the defendant further insists that there were no proper proofs of loss made, as required by the policy. It appears that soon after the loss the agents of the company came to the place where the plaintiffs reside, to examine into the matter. The plaintiffs state that the general agent, Bev-eridge, told them at the time that he came to take proofs of loss. This was doubtless the examination provided for in the policy, and was not what is technically termed the proofs of loss, which the assured is usually bound to furnish. It appears, however, that the general agent, after having examined into the facts relative to the fire and the amount of property, told the plaintiffs that he could not recommend the company to pay the loss, as it appeared from their statements that they had sold more goods than they had purchased. In other words, the agent, after the examination, stated to them that “ they had no claim under the policy,” thus denying all liability on the part of the company to pay the loss. This the court held to [569] be a waiver by tbe company of tbe right to demand formal proofs of loss; and tbe authorities fully sustain tbe rule laid down in tbe charge upon this point: “ Presentation of proofs under such circumstances was of no importance to either party, and tbe law rarely, if ever, requires tbe observance of an idle formality, especially after tbe party for whose benefit the original stipulation was made, has rendered conformity thereto unnecessary and practically superfluous.” Norwich & New York Trans. Co. v. Western Mass. Ins. Co., 34 Conn., 561, 570, and authorities cited. And, for a like reason, all necessity for producing the certificate of the magistrate was obviated by the position of the company that it was not liable for the loss. That the defendant denied its liability, was a fact sworn to by the agents themselves, who made the examination into the circumstances of the loss, and who told the plaintiffs that they had no claim under the policy. There was, therefore, no question of fact for the jury to pass upon, but merely a question of law, whether, upon the facts admitted, the company had not waived the conditions in the policy. The offer on the part of the defendant to prove by the witness Delano the terms of the contract for the sale of the property on which the store building stood, made by him with the plaintiff McBride, was clearly irrelavent to the issues, and was properly excluded from the consideration of the jury. The deed was in evidence, which showed that some months before the policy was issued the property was conveyed to McBride, who doubtless held the legal title, as we have before observed, for the benefit of the firm. But whether McBride had complied with the conditions of the contract made by him with the witness Delano, was entirely immaterial. Upon the whole record we think the judgment of the circuit court is correct, and that it must be affirmed. By the Court. Judgment affirmed.