McFetridge vs. The American Fire Ins. Co. of Philadelphia. actual loss and from recovering the full amount. Sibley v. Prescott Ins. Co. 57 Mich. 14; Miaghan v. Hartford F. Ins. Co. 24 Hun, 58; Lebanon Mut. Ins. Co. v. Kepler, 106 Pa. St. 28. CASSODAY, J. 1. Upon the rendition of the special verdict, counsel for the defendant moved to set aside the several answers of the jury and the court to questions 2, 3, 4, 5, 9, and 10 in the special verdict, mentioned in the foregoing statement, and for judgment in favor of the defendant upon the answers of the court to questions 1, 7, and 8 of the special verdict. That motion was properly denied for reasons given by Mr. Justice PINNEY in Sheehy v. Duffy, 89 Wis. 6. 2. It is undisputed that at the time of making the contract of insurance the plaintiff was in partnership with Hiram Scott and William H. Smith, doing business under the firm name of the American Ice Company, and as such owned the ice in question. Nevertheless, the policy was taken in the name of the plaintiff alone. There is evidence tending to show that the agent or broker of the defendant who made the contract knew of such partnership and ownership at the time the policy was issued, and waived the condition therein respecting the same; but there is also evidence the other way, and the question of such waiver is left undetermined by the verdict, and hence the verdict is defective. Sherman v. Menominee R. L. Co. 77 Wis. 14; McFetridge v. Phenix Ins. Co. 84 Wis. 200. The second finding is merely to the effect that the plaintiff did not represent that he was the sole owner. 3. The policy expressly authorized additional insurance on the property insured, and provided that in case of other insurance thereon the defendant should only be liable for such ratable proportion of the loss or damage as the amount insured by the defendant should bear to the whole amount McFetridge vs. The American Fire Ins. Co. of Philadelphia. insured thereon, without reference to the dates of different policies or the solvency of the underwriters. It is true the defendant has not pleaded this provision of the policy, but the question here presented is whether the plaintiff is entitled to recover the whole amount of his loss from the defendant, under the policy and the admitted facts in the case. It appears from the proofs of loss furnished by the plaintiff and put in evidence by him that, at the time of the fire, the plaintiff held policies of insurance upon the same property in three other companies,- two for $1,000 each, and one for $2,000. Such being the facts admitted by the plaintiff, we must hold that the defendant is in no event liable for any more than one third the amount of such loss. 4. By the seventh and eighth findings of the court in the special verdict, it is found, in effect, that after the making of the policy and before the fire a portion of the ice covered by the insurance was removed from the icehouse and sold by the plaintiff. The policy not only covered ice in the icehouse, but in the cars near thereto. It provides, in effect, that the sale or transfer of the whole or a part of the ice, without the consent of the defendant indorsed thereon, should avoid the policy. We have no doubt that such condition could be waived without a written indorsement thereon. Renier v. Dwelling House Ins. Co. 74 Wis. 89; Stanhilber v. Mut. M. Ins. Co. 76 Wis. 285. Whether there was such waiver is not determined by the special verdict. The answer alleges, in effect, that, at the time of making the contract of insurance, it was understood and agreed that when shipments of ice were made the plaintiff should notify the defendant, and the amount of insurance should be reduced accordingly; that shipments had been made without giving such notice; that the defendant ascertained the fact before the fire, and attempted to reduce the policy, but failed, through the negligence of the plaintiff. This would indicate a waiver of any forfeiture by such mere shipments 90 144 108 394 Boorman vs. The Northwestern Mutual Relief Ass'n. of ice; and yet the verdict finds the removal, sale, and transfer of a portion of the ice, without determining the question of waiver. The facts in this case are not very complicated, but have been greatly obscured by the manner in which they have been presented. The appellant's brief is unnecessarily prolix, covering eighty-three printed pages. It might have been limited to one fourth or one fifth of the amount, and still have been more helpful. By the Court. The judgment of the circuit court is reversed, and the cause is remanded for a new trial. In taxing costs, the appellant will only be allowed for thirty pages of brief. BOORMAN, Appellant, vs. THE NORTHWESTERN MUTUAL RELIEF March 12-April 3, 1895. Contracts: Validity: Insanity: Evidence: Opinion of nonexpert: Life insurance: Exchange of policies. 1. To invalidate a man's act by reason of his insanity the proof must show inability to exercise reasonable judgment in regard to such act. 2. In an action upon a benefit certificate which the insured had exchanged, a short time before his death, for another under which there could be no recovery in case of suicide, it being claimed that such exchange was invalid because of his insanity, evidence that he had become sullen and quarrelsome after the death of his wife; that he had treated his mother unkindly, charged her with wanting to get his insurance, and finally left her house in a passion; that he had said men were following him or were going to kill him; that he had had trouble with a fellow laborer; and that he had taken his own life, either deliberately or by accident,-together with the opinion of a medical expert, based on a hypothetical statement of the facts, that he died insane but that he might have been capable of doing ordinary business, depending on the ques Boorman vs. The Northwestern Mutual Relief Ass'n. tion whether there were any delusion in his mind regarding it,— is held insufficient to carry the question of insanity to the jury, in the absence of any evidence of any such delusion or that he did not reason intelligently and act rationally in the matter of the exchange, and, on the contrary, it being shown that he did so reason and act. 3. The testimony of a nonexpert witness that he had worked for a few days with the deceased shortly before his death, and that he became quarrelsome and got mad at the witness because of the latter's failure to drive the horse straight while deceased was holding an ice plow, did not show facts entitling such witness to give his opinion on the question of sanity. APPEAL from a judgment of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Affirmed. Action to recover upon a mutual life insurance policy. The defendant issued an indemnity policy to one Holman Boorman, August 24, 1885. This policy was conditioned for the payment of certain assessments by the assured, and provided (1) for the payment of forty per cent. of the proceeds of an assessment (not exceeding, however, $500) in case of total and permanent incapacity to perform manual labor; (2) for the payment, in case of death or on the 24th day of February, 1926, of eighty per cent. of the proceeds of an assessment, not exceeding $2,000. The policy was payable to the assured or, in case of his death, to Maggie Boorman, his wife, if living; otherwise to the heirs of the assured. It contained no provision avoiding it in case of suicide. On the 14th day of April, 1887, Maggie Boorman, the beneficiary, died, leaving an infant child, which died two months later. The complaint claims that Holman Boorman became gradually unsettled in his mind after the death of his wife, so that in January, 1890, he was in fact insane and incompetent to transact business. It is further alleged, and the fact appears by the proof, that on the 2d of January, 1890, the defendant, having determined to issue a new form of policy, VOL. 90-10 Boorman vs. The Northwestern Mutual Relief Ass'n. sent to Holman Boorman by mail a printed document which was a formal application in blank for the surrender. of his old certificate and for a certificate in the new form in exchange therefor, together with a circular letter explaining the advantages of the new form of certificate over the old, and informing old members that they could make the exchange, upon a statement of good health, within sixty days. The proposed new certificate provided that “suicide or self-destruction of the member herein named, whether voluntary or involuntary, sane or insane at the time thereof, is not a risk assumed by the association." It contained also provisions for the payment of partial indemnity in case of accidental loss of hands, feet, arms, or legs, and in case of total blindness; also for the payment, February 24, 1926, of forty per cent. of an assessment, not exceeding $1,000, and for the payment at death of eighty per cent. of an assessment, not exceeding $2,000. These changes were detailed in the circular accompanying the blank application. Soon after receiving these papers Holman Boorman went to the office of the defendant company at Madison, and surrendered his certificate, and thereafter a policy of the new form was issued to him, dated January 29, 1890, but the evidence tends to show that he did not receive it until about March 11, 1890. This last policy was payable to the assured, if living; if not, to his mother (the plaintiff); if none, to his wife; if none, to his parents; if none, then to his heirs. The complaint alleges that Holman Boorman was at the time of this exchange wholly incompetent to transact any business, and that the defendant then and thereby perpetrated a fraud on the assured and his representatives. Holman Boorman died intestate, March 18, 1890, leaving his mother as his only heir. The complaint alleges that the cause of his death was an "overdose of laudanum, taken while insane." The giving of notice and proofs of death as required by the policy, as well as the performance of all |