Blakeley v. Phœnix Insurance , 20 Wis. 205 ( 1865 )

Tbe following opinion was filed at tbe June term, 1865:

Downer, J.

Tbe pobcy of insurance provides tbat in case of loss “tbe assured shall forthwith give notice of said loss to tbe said company, and as soon after as possible render a partió-ular account of such, loss, signed and sworn to by them, stating whether any and what other insurance has been made on the said property, giving copies of the written portions of all policies thereon.” The insured, in his affidavit of the loss, states : “ there were three hundred dollars additional insurance made thereon by the following company, viz: A policy believed to be dated January.27th, 1863, and numbered 6736, in the Mechanics’ Mutual, of Milwaukee, Wisconsin, on the building. That he is unable to furnish a written copy thereof, the policy haying been mislaid; and the secretary of the company says he has no record of the written part of said policy.”

It is insisted that the insured should have given, under oath, as part of the preliminary proofs, a cojDy of the written portion of the policy for three hundred dollars; and that, he not haying done this, the plaintiffs cannot recover. It seems to us that this position is well taken. The giving of the copy was a condition precedent. The counsel fox the plaintiffs has very ingeniously argued that the words requiring the copy only pointed out one of the modes in which information of the additional insurance might be given, and that any description in the affidavit giving truly the amount, number, date of the policy, and name of the company which issued it, was sufficient. It is true that the policy provides that the insured shall state what other insurance has been made on the property; and in making this statement he may give all the information which the copy of the written portion of the policy would contain. But it does not follow that there is not in any case any advantage to the company from the clause requiring the copy. We see not why the company may not make it a condition precedent that the information shall be given in a particular mode, even though it adopted an arbitrary, and, as it might appear to us, a useless rule. It is not our province to make conditions or agreements for the parties, but so to construe those made by themselves as not to fritter away the rights of either party It appears to us that the provision requiring the copy is an important one. Itprac-tically requires the insured to see and examine the policy just before or at the time of making the oath. "Without that provision the affiant might, as he has done in this case, make an affidavit based upon his recollection or belief of what took place eight months before. With it, he must of necessity refresh his recollection by examining the policy before making the oath, so that there would be scarcely the possibility of his making any untrue statement without committing the crime of wilful and corrupt perjury.

By the Gourt. — The judgment of the court below is affirmed, with costs.

A motion for a rehearing was denied at the January term, 1866.