Feldmeier v. Springfield Fire & Marine Insurance

Vinje, J. At the commencement of the trial the plaintiff moved to strike out the answer on the ground that it was not properly verified, because sworn to by an agent of the corporation and his grounds of knowledge were not set forth. The verification purports to be by an officer of the corporation and seems sufficient.. But, without deciding ■ the question of its sufficiency, it is plain the court properly denied the motion because plaintiff had retained the answer nearly a year without objection. If he thought the verifi-. cation was defective he should have seasonably returned it for that reason. Not having done so, he could not be heard to raise the question of the sufficiency of the verification on . the eve of trial. Paine v. Smith, 32 Wis. 335. It is urged the court erred in setting aside the judgment • and granting a new trial. There are two answers to this claim: first, there was no abuse of discretion in opening up the default because it was adequately explained and defendant was entitled to a new trial; and second, the plaintiff, by accepting the costs imposed by the order and retaining them without objection, waived any right of appeal therefrom. Smith v. Coleman, 77 Wis. 343, 46 N. W. 664; Price v. Grzyll, 133 Wis. 623 (114 N. W. 100) and cases cited on page 627. Provo, the facts found by the court, which are not challenged, it is plain that no contract of insurance was made. The application was refused and seasonably returned to the agent at Bayfield. . He sent it to plaintiff’s son, who lived [381] with his mother. He did this under information to the effect that plaintiff, the mother, was temporarily away from the farm. The son had previously .acted in the matter of trying to effect this insurance by carrying the message to her that the policy was about to expire. Under the circumstances the agent was justified in mailing the letter of refusal to the son. .Had he opened it when it was received there would have been time to effect new insurance. But he testified that the letter remained unopened in his house for several days and until after the fire. Defendant used due diligence in communicating its disapprovál of the application to plaintiff and hence no liability attaches to it for the fire loss. By the Court. — Order and judgment affirmed.