Sabotta v. St. Paul Fire & Marine Insurance

Wisconsin Supreme Court

Sabotta v. St. Paul Fire & Marine Insurance

12 N.W. 18, 54 Wis. 687, 1882 Wisc. LEXIS 78

CourtWisconsin Supreme Court

DecidedMay 10, 1882

StatusPublished

Cited by8 cases

This text of 12 N.W. 18 (Sabotta v. St. Paul Fire & Marine Insurance) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sabotta v. St. Paul Fire & Marine Insurance, 12 N.W. 18, 54 Wis. 687, 1882 Wisc. LEXIS 78 (Wis. 1882).

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Opinions

The following opinion was filed March 14, 1882:

Cassoday, J.

The verdict having been directed for the-plaintiff, the judgment entered thereon can only be sustained [690]*690on the theory that the evidence in behalf of the defendant, had it remained undisputed, and giving to i-t the most favorable construction it will legitimately bear, and deeming everything as fully proved which such evidence tends to proveí including all reasonable inferences from it, is insufficient to justify a verdict in favor of the defendant. Lawrence University v. Smith, 32 Wis., 592, and other cases cited in Spensley v. Lancashire Ins. Co., ante, p. 433. Is there any evidence, when so construed, tending to prove, (1) that the plaintiff, at the time of applying for the insurance, misrepresented as to the amount pf incumbrances on the premises; and (2) that the plaintiff assigned the policy?

It appears from the undisputed evidence that on the 21st of October, 1872, Smith, owning 126 acres of land, mortgaged the whole for $690 to Allen, who assigned the mortgage to George Moser, June 21, 1875. The plaintiff, having purchased of Smith 80 of said 126 acres, mortgaged the same to Moser, May 19, 1876, for $400; and the evidence tends very strongly, if' not conclusively, to show that Moser, at the time of talcing that mortgage, and in consideration therefor, agreed to release the 80 acres from the $690 mortgage which he then held. January 2, 1877, the plaintiff gave to Moser another mortgage on the 80 for $400 more. April 26, 1879, Moser began to foreclose the $690 mortgage by advertising the whole 126 acres for sale to satisfy the balance of $290 due thereon, after deducting the first $400 mortgage; and 26 acres were sold in satisfaction thereof, together with interest and costs, June 9, 1879; and thereupon the 80 acres were released from that mortgage. The plaintiff admits that he signed the written application for insurance, which stated that there was but $400 incumbrances on the premises; and he also admits that there were at the time two mortgages, of that amount each, on the premises, making $800. The plaintiff also admits that .June 9, 1879, he signed the blank assignment on the back of .the policy, and gave the same so signed to the attorney of the [691]*691owner of the two $400 mortgages, at his request, and who at the time held the mortgages; he also admits that he subscribed and swore to the affidavit of January 12, 1880, and that the statements therein contained were correct. These admissions, the contents of these several papers so signed by the plaintiff, the undisputed facts in the case, and the nature and character of the other evidence given upon the trial, leave no doubt in our minds but that, under the rule stated, there was evidence tending to pi’ove that, at the time of applying for the insurance, the plaintiff misrepresented as to the amount of incumbrances upon the premises, and also evidence tending to prove that the plaintiff made an absolute assignment of the policy. Whether he did either of those things or not, was therefore, in our opinion, a question of fact for the jury; and hence it was error to direct a verdict for the plaintiff.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

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The following opinion was filed March 14, 1882:

Cassoday, J.

The verdict having been directed for the-plaintiff, the judgment entered thereon can only be sustained [690]*690on the theory that the evidence in behalf of the defendant, had it remained undisputed, and giving to i-t the most favorable construction it will legitimately bear, and deeming everything as fully proved which such evidence tends to proveí including all reasonable inferences from it, is insufficient to justify a verdict in favor of the defendant. Lawrence University v. Smith, 32 Wis., 592, and other cases cited in Spensley v. Lancashire Ins. Co., ante, p. 433. Is there any evidence, when so construed, tending to prove, (1) that the plaintiff, at the time of applying for the insurance, misrepresented as to the amount pf incumbrances on the premises; and (2) that the plaintiff assigned the policy?

It appears from the undisputed evidence that on the 21st of October, 1872, Smith, owning 126 acres of land, mortgaged the whole for $690 to Allen, who assigned the mortgage to George Moser, June 21, 1875. The plaintiff, having purchased of Smith 80 of said 126 acres, mortgaged the same to Moser, May 19, 1876, for $400; and the evidence tends very strongly, if' not conclusively, to show that Moser, at the time of talcing that mortgage, and in consideration therefor, agreed to release the 80 acres from the $690 mortgage which he then held. January 2, 1877, the plaintiff gave to Moser another mortgage on the 80 for $400 more. April 26, 1879, Moser began to foreclose the $690 mortgage by advertising the whole 126 acres for sale to satisfy the balance of $290 due thereon, after deducting the first $400 mortgage; and 26 acres were sold in satisfaction thereof, together with interest and costs, June 9, 1879; and thereupon the 80 acres were released from that mortgage. The plaintiff admits that he signed the written application for insurance, which stated that there was but $400 incumbrances on the premises; and he also admits that there were at the time two mortgages, of that amount each, on the premises, making $800. The plaintiff also admits that .June 9, 1879, he signed the blank assignment on the back of .the policy, and gave the same so signed to the attorney of the [691]*691owner of the two $400 mortgages, at his request, and who at the time held the mortgages; he also admits that he subscribed and swore to the affidavit of January 12, 1880, and that the statements therein contained were correct. These admissions, the contents of these several papers so signed by the plaintiff, the undisputed facts in the case, and the nature and character of the other evidence given upon the trial, leave no doubt in our minds but that, under the rule stated, there was evidence tending to pi’ove that, at the time of applying for the insurance, the plaintiff misrepresented as to the amount of incumbrances upon the premises, and also evidence tending to prove that the plaintiff made an absolute assignment of the policy. Whether he did either of those things or not, was therefore, in our opinion, a question of fact for the jury; and hence it was error to direct a verdict for the plaintiff.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

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12 N.W. 18, 54 Wis. 687, 1882 Wisc. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sabotta-v-st-paul-fire-marine-insurance-wis-1882.

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