Lewis v. Ins. Co. of N. Am. of Phila., Pa.

• Decision Date: 13 January 1931
• Citation: 203 Wis. 324,234 N.W. 499
• Parties: LEWIS v. INSURANCE CO. OF NORTH AMERICA OF PHILADELPHIA, PA.
• Court: Wisconsin Supreme Court

203 Wis. 324

234 N.W. 499

LEWIS

v.INSURANCE CO. OF NORTH AMERICA OF PHILADELPHIA, PA.

Supreme Court of Wisconsin.

Jan. 13, 1931.

Appeal from the Circuit Court of Oconto County; Edgar V. Werner, Judge.

Action by Theresa Lewis, executrix of the will of Emil Lewis, deceased, against the Insurance Company of North America of Philadelphia, Pa. From a judgment dismissing the complaint, plaintiff appeals.--[By Editorial Staff.]

Reversed, with directions.

Action commenced April 24, 1929. Judgment entered December 24, 1929.

Action to recover for the loss by fire of a hay-baler and silo-filler belonging to the plaintiff. There is no dispute as to the facts. On the 21st day of September, 1927, the plaintiff, as executrix of the will of Emil Lewis, deceased, and sole devisee and legatee, was the owner of a farm located in the county of Oconto and certain farm machinery located thereon, including the hay-baler and silo-filler involved in this action. On that day the defendant, through its duly authorized agent, issued and delivered to the plaintiff its policy of insurance, which policy contained the following provision: “(19) $500 On Mowers, Reapers, Harvesters, Farm Implements, Tools, Cream Separators, Milk Cans, Empty Sacks and Bags, Utensils and Farm Machinery (excluding threshing machines, windmills, electric motors, gasoline, kerosene and steam-power engines and machines), on or temporarily off the premises herein described.”

At the time the policy was issued and delivered the hay-baler and silo-filler were on plaintiff's premises. During the fall of 1927 both machines were hauled from place to place for the purpose of pressing hay and filling silos for other farmers living in that locality. The silo-filler was taken to the farm of one Frank Carey about September 28, 1928, and there used to fill the Carey silo. Another neighbor asked to have the machine for the purpose of filling his silo, and it was therefore left at the Carey farm until he was ready to have the work done. The neighbor, however, did not use the machine, and it was left in a shed on the Carey farm until the plaintiff could conveniently get it. About the first of December the hay-baler also was taken to the farm of Carey who had engaged it for pressing marsh hay out of the stack which Carey had contracted to purchase. Owing to the great weight of this machine it could not safely be taken on to the marsh until the ground was well frozen. In January when the ground had become sufficiently frozen to permit this machine to be taken on to the marsh the seller of the hay refused to abide by the terms of his contract, with the result that new negotiations for the purchase of the hay continued through the months of February, March, and April. At the time of the fire Carey still expected to get the hay and to have it pressed by the plaintiff. Plaintiff had only this one job of hay-pressing left and continually expected to be notified to do this work. After the completion of the Carey job it was planned to haul both the silo-filler and the hay-baler back to the plaintiff's home with one trip. Both machines, however, were destroyed by fire on May 2, 1928. At the time the policy was issued plaintiff also owned a Fordson tractor which was used to operate her plow, disc, harvester, wagons, hay-loader, and also the hay-baler and silo-filler. It was agreed that the value of the silo-filler and hay-baler at the time of the fire was $450.

The action was tried by the court without a jury. It was held that the hay-baler and the silo-filler were “gasoline, kerosene and steam-power machines” because they were actually operated by means of a belt driven by a pulley constituting a part of a Fordson tractor which used kerosene fuel, and was therefore within the policy exceptions and not covered by the policy. Judgment dismissing the complaint and for the costs of the action was accordingly entered. From the judgment so entered plaintiff appealed.

A. J. Whitcomb, of Milwaukee, for appellant.

Shaw, Muskat & Sullivan, of Milwaukee, for respondent.

NELSON, J.

[1][2] The plaintiff contends that the court erred in holding that the silo-filler and hay-baler were not within the terms of the policy. The policy clearly covered “farm machinery” and by its terms excluded “threshing machines, windmills, electric motors, gasoline, kerosene and steam-power engines and machines.” The policy is a Wisconsin standard fire policy, but paragraph 19 thereof is contained in a rider attached to the policy which is clearly a “description and specification or schedule of the property covered.” Statutes, § 203.06 (2). The form of the particular rider containing paragraph 19 is not specified by statute. Nowhere do our...