Morris v. National Protective Society

WiNslow, J. A verdict for the plaintiff was directed, notwithstanding the admitted breach of warranty as to existing insurance of a similar character, because the court held that the defendant had waived its right to rely on this defense. Prior to' the consideration of the question of the correctness •of this ruling, however, a preliminary objection must be considered. It is claimed by the respondent that there is no exception in the record which enables this court to review the evidence. It is true that no exception was taken to the ■denial of the motion to direct a verdict for defendant, but .a motion was made to set aside the verdict and for a new trial, which was overruled; and it has been distinctly held that, where it appears by the record that such a motion has been denied, this court may, on appeal from the judgment and without exception to the order, examine the record to see whether there was any evidence to support the verdict, and if there was none, or if there was a clear preponderance the other way, may reverse the judgment on that ground. Tourville v. Nemadji B. Co. 70 Wis. 81. See, also, Webster v. Phœnix Ins. Co. 36 Wis. 67. This ruling was made because the order (when made part of the record by the bill ■of exceptions) is one of the orders covered by sec. 3070, Stats. 1898, and, by the express terms of that section, may, without any exception thereto, be reviewed upon appeal from the judgment. [96] Coming, then, to the main question, we are compelled to say that there was no evidence in the case showing waiver of the defense of breach of warranty. It does not appear by any evidence in the case that the defendant company, at any time prior to the commencement of the action, had any knowledge that the plaintiff had other insurance at the time he made his application. It is true that it may perhaps be inferred from its letter of January 7, 1898, that it was then informed of other insurance in the Mutual La Crosse Company at the time of the 'plaintiff'’s injury, but this fact would constitute no defense; nor can it be inferred that the plaintiff had other insurance in September because the fact apjiears that he had such insurance in the following month. There being no evidence to show that the defendant had any knowledge of the breach of warranty when the letter of January 7th was written, it is clear that the letter constitutes neither waiver nor estoppel, because it does not appear that it was written with knowledge of the material facts. Rasmusen v. N. Y. L. Ins. Co. 91 Wis. 81. By the Gourt.— Judgment reversed, and action remanded for a new trial.