Faust v. Am. Fire Ins. Co. of Phila.

Decision Date22 October 1895
Citation64 N.W. 883,91 Wis. 158
PartiesFAUST v. AMERICAN FIRE INS. CO. OF PHILADELPHIA.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Joseph F. Faust against the American Fire Insurance Company of Philadelphia to recover on a policy of insurance. From a judgment for defendant, plaintiff appeals. Reversed.

This action was brought to recover loss sustained by the plaintiff under a standard insurance policy of the state of Wisconsin, issued by defendant. The written portion of the policy reads as follows: Joseph Faust: Four hundred dollars ($400) on his two-story frame, shingle-roof building and one-story frame addition thereto, occupied as a furniture store and repair shop, situated on the corner of East and River streets, village of Christiana, Dane county, Wisconsin. Four hundred dollars ($400) on the stock of furniture, upholstery goods, and other merchandise, not more hazardous, usual to a retail furniture store, while contained therein.” The printed portion of the policy contained, among other things: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises benzine * * *.” The policy also contained in the printed portion a provision requiring immediate notice in writing to the company in case of loss, and sworn proofs of loss within sixty days after date of fire. Also the following: “The company shall not be held to have waived any provision or condition of this policy, or of any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal, or to any examination herein provided for. This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, and conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or added hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” The answer alleged a breach of the condition prohibiting the keeping or use of benzine on the premises; also the failure on plaintiff's part to furnish proofs of loss as required by the policy. The evidence shows that the assured, at the time the policy was issued, and at the time of the fire, had a small amount of benzine on the premises, kept solely for use in the repair shop, and that it was necessary for such use. The evidence also shows that notice of the loss was given to the company the next morning after the fire; that soon thereafter the company's adjuster visited the scene, and was furnished by appellant with a list of the goods burned; that he then discovered that benzine had been kept on the premises, and thereupon notified the plaintiff that such fact rendered the policy void; that he took away with him the list of the property destroyed, furnished by plaintiff, and the same has ever since been retained by him or some one for the company. From that time on the defendant has refused to communicate with plaintiff with respect to the loss. The trial court granted defendant's motion for nonsuit upon the ground that the contract of insurance was rendered void by a violation of the provision prohibiting the keeping or use of benzine on the premises, and judgment was rendered accordingly.B. W. Jones and E. Ray Stevens, for appellant.

Bashford, O'Connor & Aylward, for respondent.

MARSHALL, J. (after stating the facts).

The main question presented on this appeal is whether the presence of a small amount of benzine on the premises for use in the repair shop rendered the contract of insurance void. Keeping in mind the undisputed evidence that the prohibited article was not kept as an article of merchandise for sale, but as an article usually and necessarily kept in operating the business of the repair department of the furniture store, which the policy expressly covered, we find abundant authority to support the general rule, which we adopt, that where a contract of insurance, by the written portion, covers property to be used in conducting a particular business, the keeping of an article necessarily used in such business will not avoid the policy, even though expressly prohibited in the printed conditions of the contract. To that effect are Mears v. Insurance Co., 92 Pa. St. 17; Viele v. Insurance Co., 26 Iowa, 9;Collins v. Insurance Co., 79 N. C. 279,--cited by appellant'scounsel, to which many may be added: Carrigan v. Insurance Co., 53 Vt. 418;Stout v. Assurance Co., 11 Biss. 313, 12 Fed. 554; Insurance Co. v. Updegraff, 43 Pa. St. 350, 353; Plinsky v. Insurance Co., 32 Fed. 47;Bryant v. Insurance Co., 17 N. Y. 200;Insurance Co. v. Taylor, 5 Minn. 492 (Gil. 393); Whitmarsh v. Insurance Co., 16 Gray, 359;Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102;Carlin v. Assurance Co. 57 Md. 515;Harper v. Insurance Co., 17 N. Y. 197;Hall v. Insurance Co., 58 N. Y. 292; and many others. In the early case of Harper v. Insurance Co., supra, it was held that the underwriters must be presumed to have been acquainted with the business and with the materials necessarily used in prosecuting it, and to have included such materials in the risk, the same as if each article had been particularly mentioned in the written portion of the policy; that the written portion in that regard will control the printed portion prohibiting the keeping of such articles. This case has been frequently cited and approved, and may be said to be strictly in line with the great...

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