Vankirk v. Citizens' Insurance Co.

Lyon, J. 1. On the trial the defendant demurred, ore temos, to the complaint, alleging that it failed to state a cause of action. The ground of the demurrer was that there is no allegation in the complaint that Collier was the owner of the insured property when the policy was issued or when the loss occurred. This is a mistake of fact. The complaint alleges that the barn was Collier’s property when the policy was issued, and that he was the owner thereof when, the same was burned. [630] 2. It is maintained on behalf of the company that a fact material to the risk, to wit, the existence of the mortgage upon the insured property, was concealed from the company by Collier, and hence that the policy is void. Collier not having been questioned concerning incumbrances on the property, and it having been found by the court on sufficient evidence that he did not intentionally or fraudulently suppress the fact, it must be held on the authority of Alkan v. N. H. Ins. Co. 53 Wis. 136, that his failure to disclose the existence of the mortgage does not invalidate the policy. The rule there adopted, and which is applicable here, is thus stated in Wood on Insurance, 388: “Whenno inquiries are made, the intention of the assured'becomes material, and to avoid the policy it must be found, not only that the matter was material, but also that it was intentionally and fraudulently concealed.” The existence of the mortgage was a fact material to the risk, and no proof of its materiality was necessary. Hence it was not error to exclude such proof, which the circuit court did. Such proof would have been inconsequential. 3. The court found that, notwithstanding the mortgage, Collier was the owner in fee-simple absolute of the premises on which the insured building was erected. This is equivalent to holding, in the language of the policy, that he was the unconditional and sole owner thereof. This ruling is sustained by the decision of this court in Johannes v. Standard Fire Office, 70 Wis. 196, in which case we adopted the doctrine of Dolliver v. St. J. F. & M. Ins. Co. 128 Mass. 315, which is precisely in point. We conclude that neither breach of the policy is well assigned. 4. The point' is made that the proofs of loss failed to comply with the requirements of the policy in that behalf. No such proofs were required. • The undisputed evidence is that the company denied its liability on the policy, and refused to pay the loss, before the time expired for making [631] sucb proofs. This is an effectual waiver of the proofs. King v. Hekla F. Ins. Co. 58 Wis. 508; Harriman v. Queen Ins. Co. 49 Wis. 12; McBride v. Republic F. Ins. Co. 30 Wis. 562; Parker v. Amazon Ins. Co. 34 Wis. 363. 5. On the trial the court allowed. Collier to testify whether or not he intentionally concealed from the agent of the company the existence of the mortgage. Error is assigned on this ruling. The testimony was competent. See Wilson v. Noonan, 35 Wis. 355, and other cases cited in the brief of counsel for plaintiff. The record discloses no material error. The judgment of the circuit court must therefore be affirmed. By the Court.—Judgment affirmed.