Meeme Mutual Home Protective Fire Insurance v. Lorfeld , 194 Wis. 322 ( 1927 )

Vinje, C. J.

There is practically no dispute in the evidence. The findings of the trial court are well supported by it. The controversy arises over what in law constitutes a mistake of fact. This matter was carefully considered by this court in Kowalke v. Milwaukee E. R. & L. Co. 103 Wis. 472, 79 N. W. 762. The court there said:

“The most philosophical definition we have found is that presented by Pdmeroy (Eq. Jur. § 839) : ‘an unconscious ignorance or forgetfulness of the existence or nonexistence of a fact, past or present, material to the contract.’ This definition contains several elements, each of which, as above suggested, must be explained and qualified in its practical application. Thus, the ignorance must be unconscious; that is, not a mental state of conscious want of knowledge whether a . fact which may or may not exist does so. This idea is involved in, and furnishes a reason for, the exception pointed out by Dixon, C. J., in Hurd v. Hall, 12 Wis. 112, 127, on authority of Kelly v. Solari, 9 Mees. & W. 54, viz.: Where a party enters into a contract ignorant of a fact, but meaning to waive all inquiry into it, or waives an investigation after his attention has been called to it, he is not in mistake, in the legal sense. These limitations are predicated upon common experience, that, if people contract under such circumstances, they usually intend to abide the resolution either way of the known uncertainty, and have insisted on and received consideration for taking that chance.

“Akin to the rule that the ignorance must be unconscious, though going still further as an exception, is the other rule, that ignorance must not be due to negligence, although there be no actual suspicion with reference to the fact in question.” Citing authorities.

The trial court has acquitted the plaintiff of negligence, but its findings bring him- squarely within the rule that a mistake of fact must rest upon unconscious ignorance, and that where one waives an investigation after his attention has been called to the possibility of the existence of the fact, he is not acting under a mistake of fact in the legal sense. Here the attention of the plaintiff was called to the fact that the fire might be of incendiary origin. It had the benefit of investigation by the state fire marshal as well as such investigation as it had made or could make on its own account; and with full knowledge of all the facts, conscious of the fact that the fire might be of incendiary origin, it nevertheless paid. Under such circumstances it cannot be said that the plaintiff acted under a mistake of fact in the legal sense' The act must be judged as' of the time when the payment was made. The plaintiff was not unconscious or forgetful of the fact that the fire might be of incendiary origin, but in spite of that knowledge and conscious of that fact concluded to pay. The payment under such circumstances was voluntary, was not made under a mistake of fact, and cannot be recovered by the plaintiff. In Ball v. Shepard, 202 N. Y. 253, 95 N. E. 719, it is held that there can be no recovery unless the mistake which is relied upon as the basis of the recovery arose in the transaction between the parties to the action; but we do not base our decision upon this rule but upon the one stated, and mention the case only because the trial court cited it and seemed to rest his decision upon it.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss plaintiff’s complaint upon the merits.