I concur in the result of the decision in this case, except as to the Bostwiclc policy; and as to that I think the judgment should be affirmed. As to that policy, the evidence, in my judgment, clearly brings the case within the well-established rule stated in a recent standard work, cited by plaintiffs counsel, as follows:
“By the overwhelming weight of authority, ordinary prudence and diligence do not require a person to test the truth of representations made to him by another as of his own knowledge, and with the intention that they shall be acted upon, if the facts are peculiarly within the other party’s knowledge or means of knowledge, though they are not exclusively so, and though the party to whom the representa*444tions are made may bave an opportunity of ascertaining tbe truth for bimself.” 14 Am. & Eng. Ency. of Law (2d ed.) 120.
The principle upon which the rule is based is sanctioned in cases cited in the opinion filed and the decision herein. It is cited merely as a concise summary of the law applicable to the Bostwich policy. Such evidence is, in my opinion, sufficient to sustain the judgment. The mere fact that the trial court did not specifically find upon the subject is no good ground for refusing to affirm the judgment so far as it relates to that policy. Wilkinson v. Wilkinson, 59 Wis. 560, 18 N. W. 527, and cases there cited; Jones v. Jones, 11 Wis. 520, 38 N. W. 88; Deitz v. Neenah, 91 Wis. 425, 426, 64 N. W. 299, 65 N. W. 500; Williamson v. Neeves, 94 Wis. 656, 69 N. W. 806; Disch v. Timm, 101 Wis. 189, 77 N. W. 196; In re Callahan, 102 Wis. 561, 78 N. W. 750.
A motion to file a second motion for rehearing was denied February 3, 1903.