Fuller v. Madison Mutual Insurance

36 Wis. 599

• Court: Wisconsin Supreme Court
• Decided: January 15, 1875
• Status: Published

Opinion

Ryan, C. J.

The position of the learned counsel for the appellants, that Deters’ application for insurance, accepted by the respondent, constitutes the binding contract of insurance between the parties to it, exclusive of the policy, appears to us wholly untenable. The application is, in effect, for insurance by policy, and the premium note is in terms in consideration of a policy. If the application were accepted, otherwise than by the policy, then the application and acceptance constituted an inchoate and executory contract executed and completed by the policy. Angell on Ins., § 22; May on Ins., §§ 44, 159, 168; Kohner v. Ins. Co., 1 Wash., 93; McCulloch v. Ins. Co., 1 Pick., 278; Perkins v. Ins. Co., 4 Cow., 645; Lightbody v. Ins. Co., 23 Wend., 18; N. E. Ins. Co. v. Robinson, 25 Ind., 536; Taylor v. Ins. Co., 9 How., 390; Ætna Ins. Co. v. Iron Co., 21 Wis., 458; S. C., 26 id., 78. We cannot see the application of Falvey v. Transportation Co., 15 Wis., 129.

The application was for such a policy as the respondent was in the habit of issuing in the usual course of business. Deters had been previously insured in the same mutual company, and is chargeable with notice of its by-laws and routine of business. Angell, § 146; Mitchell v. Ins. Co., 51 Pa. St., 402; Simeral v. Ins. Co., 18 Iowa, 319; Coles v. Ins. Co., id., 425. Having made his application, paid his premium, and accepted his policy, he is bound by it.

There is no pretense that he was overreached or deceived; otherwise than in the fact that he could not and did not read the policy. That was his own negligence. His want of knowledge of English is no excuse. Had he desired to understand the policy in detail, he could and presumably would have had it translated to him by some competent person. But, like many who can read English, he neglected to make himself acquainted with the terms and conditions of the policy on which he slept so long. And he cannot be heard to complain that his ignorance misled him.

We are not disposed to quarrel with the criticism of counsel on some captious conditions of modern fire policies. Ins. Co. v. Slaughter, 12 Wallace, 404. But we cannot regard the proviso of this policy now in question as being of a censurable character. It is little to say that the very general habit of insurance against fire has led to' great carelessness.' The destruction of property by fire, and the consequent loss to the commonwealth, have been probably increased largely by insurance. It is the interest of insurance companies, as it is public policy, that the assured shall largely share the risk with the insurer. And to that end it is important, not only that the insurer should know the amount of incumbrance on property when insured, but should have notice of subsequent incumbrances. See Columbian Ins. Co. v. Lawrence, 2 Peters, 25; Hinman v. Ins. Co., ante, 159. Hence the proviso in question, that if the property insured should be additionally 'incumbered, without notice;to the respondent, thehisurance should be void.

If Deters knew of the proviso, his subsequent mortgages, without notice to the respondent, operated as a voluntary abandonment of his insurance. If he did not know of it, it' was a disregard of the terms of the contract, in voluntary and negligent ignorance of its effect, which avoided his insurance. That is the effect of the subsequent incumbrances, without notice, under such a policy. Edwards v. Ins. Co., 1 Allen; 311; Brown v. Ins. Co., 41 Pa. St., 187; Penn. Ins. Co. v. Gottsman, 48 id., 151; Dodge Co. Ins. Co. v. Rogers, 12 Wis., 337; Wustum v. Ins. Co., 15 id., 138; Keeler v. Ins. Co., 16 id., 523.

By the Court. — The judgment of the court below is affirmed.