Webster v. Phœnix Insurance

Pbactice: Appeal. (V) Order reviewable on appeal from judgment. Insurance against Pire: Waiver: Estoppel. (2) Breach of condition in policy may be waived. (3, 4) Insurer estopped in this case from setting up such a breach. 1. An order denying a motion, after verdict, for a new trial, is reviewable on appeal from the judgment; and it is not necessary to appeal in form from such order. Tay Stats., 1632, § 6. 2. A breach, by the insured, of a condition in the policy of insurance • against fire, which, by the terms of the policy, would render it void, may be waived by the insurer. 27 Wis., 693. 3. Action on a policy of insurance against fire. Defense, that the insured, between the issue of such policy and the loss, had taken additional insurance on the property in another company, without defendant’s knowledge or consent, which, by the terms of the policy, would render it void. There was conflicting evidence as to whether defendant’s agent knew of and consented to the additional insurance, before the loss; but it appeared that after the loss defendant was informed by the agent of such additional insurance, and, without notifying-plaintiff of any refusal to pay on that ground, required her to furnish plans and specifications of the building destroyed, which she procured and furnished at considerable expense. Held, that defendant is estopped from setting up the defense above stated. 4. The fact that the insured was required by another company to furnish such plans and specifications, each company acting independently of the other; or even the fact (if that were shown) that the two companies made the requirement jointly — would not affect the force of the estoppel.

APPEAL from the Circuit Court for Winnebago County. This action is upon a policy of insurance on the dwelling bouse of tbe plaintiff in Menasha, issued by the defendant December 2, 1867, for five years, and renewed December 2, 1872, for five years. Such dwelling house was destroyed by fire December 19, 1872. . The policy contains the following condition : “ If the assured shall have or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, this policy shall be void.” On the 16th of December, 1871, the plaintiff' took a policy from the Imperial Insurance Company on the same house; and the sole defense to the action is, that the plaintiff obtained the latter policy without the knowledge or consent of the defendant. The policy issued by the defendant was renewed through the agency of one Eisher, who was then the local agent of the defendant at Menasha. The question litigated on the trial was, whether, previously to such renewal, the plaintiff’s agent and husband, A. J. Webster, informed Eisher that such additional insurance had been effected in the Imperial Company ; and the testimony relating thereto was conflicting. Mr. Webster testified that he informed Fisher of the fact soon after the additional insurance was taken ; and Fisher denies that he received any such information from Webster. There were some slight circumstances proved tending to corroborate Webster. It was proved on the trial, that the next day after the house was burned, that is, on the 20th of December, 1872, Fisher wrote to the general western agent of the defendant at Cincinnati, and telegraphed to Mr. Iott, the special adjuster of the defendant of losses in this state, informing those officers of the Imperial Company’s insurance on the house. On the 7th of February following, the general western agent addressed a letter to Mr. Fisher, which was received by him, and the contents .thereof communicated to Mr. Webster, which letter is as follows : “ CINCINNATI, February 7, 1873. “ H. D. Fisher, Esq.— Dear Sir: Your favor of tbe 4th inst., accompanying certain documents in the claim of Mrs. Helen F. Webster, is receivéd. “As proofs they are by no means satisfactory, and as one of the points of deficiency we may mention that it is not shown what the actual worth of the property was, as covered by our policy. You will please inform Mrs. H. F. Webster, that in accordance with the conditions of our policy, we requirt? full plans and specifications of the house destroyed, which, when ready, may be sent to this office.” A few days after the fire, Mr. Iott also required the plaintiff to furnish such plans, drawings and specifications of the house, as well as estimates of the cost of rebuilding it. When these requirements were made, those officers of the defendant knew all about the Imperial' Company’s insurance. The plaintiff furnished such plans, estimates, etc., at an expense of over $200. The cause was tried by the court without a jury, and the court found as a fact (amongst others), that, when the policy was renewed, Fisher, the agent, knew of the additional insurance in the Imperial Company, and gave his assent and permission théreto. The court rendered judgment for the plaintiff for the amount of the policy. The defendant afterwards moved for a new trial. The motion was founded on certain affidavits made by several persons, to the effect that after the fire, and before the trial, Mr. Webster said to some of the affiants that he gave no notice of the additional insurance to Mr. Fisher. It was claimed that the defendant was surprised by the testimony of Mr. Webster in that behalf, and was not prepared on the trial to rebut it. The court denied the motion for a new trial, and rendered judgment in accordance with the verdict. The defendant appealed from the judgment, and from the order refusing a new trial. 1. The application for a new trial was improperly overruled. A new trial will be granted when newly discovered evidence goes to utterly destroy the testimony of a witness by showing it founded in perjury. 3 Gra. & Wat. N. T., 1542, 1543 ; 1 Bos. & Pul., 429 ; Wehrhamp v. Willett, 1 Daly, 4. Where a judgment has been obtained at law through the perjury of a witness, courts of equity will interfere and grant a new trial. Hilliard on N. T., 419, § 51; 4 Bin., 481; 5 Cow., 106-123; 26 Wis., 504, and cases there cited. And a new trial should be granted on motion whenever equity would grant a new trial. 2. The testimony concerning the plans and specifications was wholly, immaterial. The policy at that time was either utterly void, or it was valid. 1. The answer did not set up a defense. The condition of the policy claimed to have been broken, was printed in .fine nonpareil type. It is subject to the charge that it was a fraud upon the insured. Phoenix Insurance Co. v. Slaughter, 12 Wall., 407 ; Gannett v. Phoenix Insurance Co., 59 Me., 587. 2. There was sufficient proof to show that when the agent renewed the policy sued on, he had notice of the second insurance. If he had such notice, the condition was waived. Miner v. Phoenix Ins. Co., 27 Wis., 695 ; Witherell v. Maine Ins. Co., 49 Me., 203; Carroll v. Charier Oah Ins. Co., 38 Barb., 402; Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154. 3. The most that can be claimed is, that this breach of the condition rendered the policy voidable at the option of the defendant. Viele v. Germania Ins. Co., 26 Iowa, 5L-53, and cases there cited. 4. The defendant is estopped, by the conduct of its agents in requiring plans, etc., from now holding the policy void. Weed v. Page, 7 Wis., 511; Williams v. Ketchum, 21 id., 434; Lawrence v. Dale, 3 Johns. Ch., 23,41; Irvine v. Irvine, 9 Wall., 627-8 ; Ferguson v. Bell, 17 Mo., 347 ; 1 Co. Litt., 175 ; Minert v. Em-erich, 6 Wis., 355; Dezell v. Odell, 3 Hill, 215 ; Silloway v. Ins. Co., 12 Gray, 82-3 ; Swain v. Seamens, 9 Wall., 272-3 ; Viele v. Ins. Co., 26 Iowa, 56 ; Big. on Est., 552-4 ; Smith’s L. C., 544.