Smith v. Commonwealth Insurance Co.

LyoN, J. Numerous exceptions were taken on the trial on behalf of the defendant, and have been argued in this court. These have all been duly considered, but it is only necessary to discuss a few of them. 1. The answer contains a defense to the effect that proper proofs of loss have not yel been.furnished, and hence that this action cannot be maintained. This, it is claimed, is a plea in abatement which should have been first tried under the decision of this court in The Supervisors v. Van Stralen, 45 Wis., 675. The court below denied the motion of counsel for defendant -for a separate trial of that issue, made at the commencement of the trial. There might be force in the position if the defense referred to were purely a plea in abatement. The point of the defense is, that the policy contained a condition that “ if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, or if the building stands upon leased ground, it must be so represented to the company, and so expressed in the written part of this policy, otherwise this policy shall be void;” that the property was held in trust by the plaintiff for others, which fact the plaintiff did not disclose to the defendant when he applied for the insurance; and that he did not, in his proofs of loss, disclose such trust, or the names of the persons beneficially interested, as required by the terms of the policy. It seems to us that this defense, although, perhaps, matter in abatement is included in it, is essentially a defense in bar. If it is true, and if the stipulations therein set forth have not been-waived, not only must the plaintiff fail in this action, but he cannot maintain any action upon the policy. Questions like this will doubtless arise less frequently hereafter, because the new rules of the circuit court authorize the [326] court, in its discretion, to send issues in bar and in abatement to the same jury at the same time, Rule 14. 2. Assuming that the legal title to the organ was held by the plaintiff in trust for the benefit of himself and others, and that the failure to express such trust in the policy would, under some circumstances, work a forfeiture of the policy, we think there was sufficient evidence to go to the jury on the question of waiver.’ The proof is overwhelming that the agent of the defendant company, who issued the policy, was informed before he issued it of the circumstances under which the plaintiff held the title. Under the instructions of the court the jury must have found that the agent knew that others were beneficially interested in the proceeds of the organ when sold, and who some of them were. Certainly, he negotiated the contract of insurance with some of them; and he was furnished with the means of information, so that, upon mere inquiry (which he did' not choose to make), he could readily have ascertained the name of each beneficiary. With knowledge of these facts he wrote the policy, without specifying therein the alleged trust upon which the plaintiff held the legal title to the property. That this omission of the agent is a waiver of the stipulation that the policy shall be void unless the trust is written therein, has been so often adjudged here and elsewhere, and is so thoroughly settled, that it is idle to discuss the proposition or cite authorities to support it. In this connection it may be remarked that it was not necessary, under the practice which prevails in this state, for the plaintiff to proceed in the first instance for a reformation of the policy by striking out the clause of forfeiture above mentioned. The assured may count upon his policy as written, and if the insurer avers and proves the breach of a condition found therein, the assured may show a waiver of such condition. This practice avoids circuity, is plain and simple, and harms no one. 3. The objection that the proofs of loss are defective in [327] that the insured property is not sufficiently scheduled therein, we think is not well taken. The schedule required we understand to be an inventory; and an inventory of a single article is made by naming the article. "We suppose the defendant’s general agent thought the company entitled to a full description or full specifications of the organ. "We arfe not called upon to determine whether, under the contract, the plaintiff would have been bound to furnish such specifications, had the defendant required him to do so. No such requirement was made in this case. The persistent demand of the agent was for a schedule, and that was furnished. We think, and so hold, that the proofs were sufficient to warrant the jury in finding a compliance by the plaintiff with the terms of the policy in this respect. 4. The bill of exceptions contains the opening address of the plaintiff'to the jury. At the close of it, defendant’s counsel moved for a nonsuit on such opening'. The court denied the motion, and the ruling is assigned as error. We think the ruling correct for two reasons: First, the practice of granting a nonsuit upon the opening statement of the case by counsel for the plaintiff, does not prevail in this state. Fisher v. Fisher, 5 Wis., 472. Secondly, the plaintiff stated a good cause of action in his opening. 5. The charge of the judge to the jury, and his refusal to give certain instructions proposed on behalf of the defendant, seem to accord with the views above expressed. It is believed that the questions above considered are the controlling ones in the case, and that it is quite unnecessary to discuss any other exceptions contained in the record. Upon the whole case, we conclude that the judgment of the county court cannot properly be disturbed. By the Court.— Judgment affirmed.