Blumer v. Phœnix Insurance Co. of Brooklyn , 48 Wis. 535 ( 1880 )


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  • OrtoN, J.

    The opinion of tlie court upon the first hearing of this cause (45 Wis., 622), expressed at the time, and still *536expresses, the views of this court upon all of the questions considered therein. The reargument has not weakened that opinion, and, we think, has tended strongly to confirm it.

    The leading question is a very narrow one, and rests upon the logical relation and commonly accepted meaning of the question and answer upon which the verdict was ordered for the defendant, viz.: “ Is tliere a watchman in the mill during the night? Is the mill ever left alone?” The first part of this question is, in itself, literally incomplete, and insufficient to express the inquiry whether a watchman is constantly kept in the mill during the night; for it is, whether at q,ny time during the night there is a watchman in the mill. TÍie other part of the question, “Is the mill ever left alone?” supplies this literal deficiency; and both parts together express the foil inquiry, whether there is a watchman in the mill all the time during the night. This meaning is intensified by the language “is the mill ever left alone?” This meaning of the question is so obvious as to scarcely bear discussion. Its purpose most clearly was to ascertain whether any person was kept in the mill in charge of it and to watch it during the night, as a precaution against fire. The question most naturally and logically suggests such an answer as would satisfy the object and purpose of the inquiry;' and we think such an answer was made. “ No regular watchman, but one or two hands sleep in the mill,” ■— that is, one or two hands are constantly in the mill, for they sleep there during the night, and they act as watchmen.

    This answer satisfies the inquiry in every particular, and is directly responsive to the question. Without the last part of the answer, it is very clear that the first part would not be responsive to the first part of the question, “ Is there a watchman in the mill?” “No regular fratchman.” The insured is not asked whether there is a regula/r watchman in the mill, and therefore this part of the answer is not responsive.

    The question is, whether there is a watchman of any kind *537in the mill during the night, or, is the mill ever left alone? The answer is directly responsive to the whole question, and its obvious meaning is, “ Yes, there is a watchman in the mill during the night, for one or two men sleep in the mill who act as such, and therefore the mill is never left alone.”

    It is conceded by the learned counsel of the appellants, that, if the answer was responsive to the question, then both the question and the answer were material to the risk, and constituted a warranty that would continue during the life of the policy, as a matter of law; and such is unquestionably the law. ‘iffhe inquiry and answer are tantamount to an agreement that the matter inquired about is material, and its materiality is not, therefore, open to be tried by the jury.” May on Ins., § 185.

    The learned counsel for the appellants, in speaking of this rule, says in his brief, and very correctly: “The essence of this rule is an implied assent of the insured to the insurer’s view as to what is material to the risk. The question must, therefore, indicate clearly what the insurer does deem material.”

    Tested by this rule, can there be any" doubt that the insurer intended this, inquiry to be material, and that the insured assented to this view? This being our opinion of the materiality of both the question and answer, and that the language is not susceptible of any other construction, or indeed liable to any doubtful or uncertain construction, the positions assumed by. the learned counsel, and their very able arguments, and the numerous authorities cited by them in their support, upon any other premises or hypothesis, are inapplicable and need not be considered.

    This opinion, upon this important question, might be greatly extended, and perhaps ought to be, if for no other reason, to show proper deference to the distinguished counsel, and their very able and exhaustive treatment of the subject on the argument; but the former opinion of the court by Mr. Justice *538Eton is so full, fair and satisfactory, that anything further would be a mere repetition and supererogation.

    The only other question which need be considered, is that of a waiver by the company of the conditions and warranties of the policy. This question was not deemed of sufficient importance, or as raised on sufficient evidence, to command attention at the trial, or on the former argument; and we are now unable to find in the testimony any such acts of waiver by the company, after knowledge of the facts of forfeiture, as bring the case within the authorities on this question. Miner v. Phœnix Ins. Co., 27 Wis., 693; Webster v. Phœnix Ins. Co., 36 Wis., 67; Gans v. St. Paul F. & M. Ins. Co., 43 Wis., 108; Northwestern Ins. Co. v. Germania Ins. Co., 40 Wis., 446.

    The judgment of the circuit court must be affirmed, with costs.

Document Info

Citation Numbers: 48 Wis. 535

Judges: Orton, Taylor

Filed Date: 2/24/1880

Precedential Status: Precedential

Modified Date: 7/20/2022