O'Neil v. Pleasant Prairie Mut. Fire Ins. Co.

• Decision Date: 12 May 1888
• Citation: 38 N.W. 345,71 Wis. 621
• Parties: O'NEIL ET AL. v. PLEASANT PRAIRIE MUT. FIRE INS. CO
• Court: Wisconsin Supreme Court

71 Wis. 621

38 N.W. 345

O'NEIL ET AL.

v.PLEASANT PRAIRIE MUT. FIRE INS. CO

Supreme Court of Wisconsin.

May 12, 1888.

Appeal from circuit court, Kenosha county; J. B. WINSLOW, Judge.

Action upon a policy of insurance. The defendant insurance company is a corporation duly organized under the provisions of Rev. St. c. 89, §§ 1927-1941, inclusive, and the several acts amendatory thereof. In November, 1885, it issued its policy of insurance to the plaintiffs, in and by which it insured them, for the term of five years, against loss or damage by fire to the amount of $2,000, as follows: “$800 on incubator building; $800 on fixtures in above building; $400 on fowls and chickens in above-mentioned building,--all situated in the town of Pleasant Prairie, county of Kenosha, and state of Wisconsin, on sec. 2, town 1, range 22 east.” In April, 1887, the insured property was destroyed by fire. The value of the property so destroyed probably exceeded the insurance thereon. It appeared on the trial that the building was erected by the plaintiffs on one acre of land leased by them for that purpose. They carried on in the building the business of hatching chickens by artificial means, and rearing them for the market. There was considerable testimony given on the trial tending to show that after the policy was issued additional fixtures were placed in the building without the consent of the company, which materially increased the risk of loss by fire. The circuit court held that the statute conferred no authority upon the defendant company to insure the incubator building and its contents; also that the undisputed evidence proved that the plaintiffs had materially increased the risk after the issuing of the policy, without the consent of the insurance company. Thereupon the court nonsuited the plaintiffs, and rendered judgment against them, dismissing the action, with costs. The plaintiffs appeal from the judgment.T. L. Cleary, for appellants.

Cavanaugh & Quarles, for respondent.

LYON, J., ( after stating the facts as above.)

The first question presented by this appeal is, was the town insurance company, the defendant, authorized by the statute to insure the building in question, and the property therein? The limitations upon the power of the defendant company to insure property against loss or damage by fire, at the time the policy in suit was issued, may be found in section 2, c. 421, Laws 1885, and is as follows: “No such corporation shall insure any property out of the town or towns in which said corporation is located: provided, that any such corporation, at its annual meeting, may, by a majority vote of the members present, authorize its directors to insure any farm property, or detached dwelling-house and contents, in any adjoining town or towns, or in any incorporated city or village, which is located in any adjoining towns in which such town insurance corporation is located: provided, such farm property or dwelling or contents shall be detached at least one hundred feet from exposure. No such corporation shall insure any property other than detached dwellings and their contents, farm buildings and their contents,...