Johnson v. Scottish Union & National Insurance

PiNNET, J. 1. The evidence is undisputed that the plaintiff owned the property insured, and that it was destroyed [227] by fire. It is.en-tirely clear that the defendant’s agent understood that the contract for insurance was' made with L. M. Johnson, to whom -the -policy was issued. ,T. (3. Johnson-testified, in .substance, that the agent said to him as he was about leaving the office., •“ Hdld on.; you have not told me whose name to place this in,” to which he answered, “You may place it -in L. M. .Johnson’s,and he (the -agent) said, “ Yery well; I will make it .out and bring it down -for you.” The policy was made out accordingly. This evidence was not disputed. There was therefore sufficient evidence-of a-mutual contract between the plaintiff and the defendant! T. C. .Johnson further testified that he did not know that anything occurred to lead the agent to believe either that he was or was not L. M. Johnson; that he gave him the name; that he did not tell him what his name was, and when he came to look at the stock he did not tell -him that it belonged .to any one else than himself, and he did. not ask. The inquiry of the agent was made and understood, no doubt, as an inquiry of ownership, and was .answered accordingly.. If the’ agent had desired further or -more specific information,-he' should have made further inquiry. As there was sufficient evidence to warrant a -verdict for the plaintiff on all other questions, it is plain that the motion for a nonsuit at the close of the plaintiff’s case, and also the motion for that purpose when the evidence was closed, were properly denied, whatever view may be taken of the evidence on the part of the defendant. . 2. The defendant did not, in issuing its policy, comply; wdth S. &B. Ann. Stats, sec. 194-5a, and “ attach to such policy, or indorse thereon, a 'true copy of any application or repre-1 sentations of the assured, which, by the terms of. such policy are made -a part thereof, or of the contract .of insurance, or referred to therein, or .which may in -any manner affect the validity of such policy.” It .chose to issue the policy without any written application. The result is that, by the sec-' [228] tion ol the statute cited, it became “ precluded from pleading, alleging or proving such application or representations, or any part thereof, or the falsity thereof, or any part thereof, in any action upon such policy.” The evidence tending to show misrepresentations on the part of the assured at the time the policy was issued was properly stricken out. Where a policy is issued without any application by the assured, and without any questions being put to him as to matters material to the risk, and it contains a clause that it shall be void if any fact material to the risk is concealed by the insured, it will not be invalidated by the fact that the assured did not disclose such material facts, if he did not intentionally or fraudulently conceal them. Wood, Fire Ins. (1st ed.), 388; Vankirk v. Citizens’ Ins. Co. 79 Wis. 627; Alkan v. N. H. Ins. Co. 53 Wis. 136; Dunbar v. Phenix Ins. Co. 72 Wis. 500. If the defendant’s agent had desired further or more specific information in respect to matters material to the risk, it is to be presumed that if he had asked for it he, would have obtained it. The defense, so far as founded on alleged false statements or misrepresentations, was wholly untenable. Whether there was any ground for claiming that there was a fraudulent concealment of facts material to the risk, we have no .occasion to inquire; for it does not appear that the defendant asked to have any question in this respect submitted to the jury, and no exception was taken to the charge of the court. The only errors assigned are in respect to the denial of the motions for a non-suit. , 3. The fact that the defendant, as a rule of its business, refused to insure the property of minors, and required its agents not to take such risks, was not brought home to the knowledge of the assured. As they were general agents to issue policies of the defendant, the assured could not be affected by private instructions of the company to them in this respect. The proof is that T. C. Johnson, who acted [229] for the plaintiff in procuring the policy, had no notice of such course of business or instructions. The record fails to disclose any error. By the Court.— The judgment of the circuit court is affirmed. MaRshall, J., took no part.