Burr v. German Ins. Co. of Freeport, Ill.

• Decision Date: 10 January 1893
• Parties: BURR v. GERMAN INS. CO. OF FREEPORT, ILLINOIS.
• Court: Wisconsin Supreme Court

84 Wis. 76

54 N.W. 22

BURR

v.GERMAN INS. CO. OF FREEPORT, ILLINOIS.

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Dayton R. Burr against the German Insurance Company of Freeport, Illinois, on a fire insurance policy issued by the defendant to James Carey, and by him assigned to plaintiff after the property insured was destroyed by fire. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that November 1, 1888, the defendant company, in consideration of $16 premium paid, issued its policy of insurance to one James Carey for the term of one year from November 1, 1888, to November 1, 1889, to the amount of $800, against loss or damage by fire to the following specified property, to wit, $675 on the cranberry boxes and barrels, $75 on three cranberry railroad cars, $50 on cranberry separator,--all stored in the warehouse therein described; that the amount of loss or damage was therein agreed to be estimated according to the cash actual value of the property at the time of the fire, and to be paid in 60 days after the loss should be ascertained, in accordance with the terms and conditions of said policy, and containing provisions to the effect that, if the property thereby insured should be levied upon or taken into possession or custody under any legal process, or if the title or possession should be disputed in any legal proceedings at law or in equity, then said policy should at once cease to be binding upon the company; that no suit or action of any kind, under or by virtue of the policy, should be sustainable, unless commenced within six months next after the loss or damage should occur; that September 19, 1889, the property insured was destroyed by fire; that September 24, 1889, the said James Carey assigned all his right, title, and interest in said claim for such loss under said policy to the plaintiff in this action; that April 16, 1890, this action was commenced to recover such loss under this policy; that the defendant's answer consisted of admissions, denials, and alleged breaches of conditions, and that the action was not commenced within the time prescribed in the policy; that at the close of the trial the jury returned a special verdict, to the effect that there were 4,440 of the boxes insured which were destroyed by said fire; that 2,959 of said boxes had been levied upon by the sheriff; that the boxes so destroyed by fire were, at the time, of the value of 5 cents each, total, $666; that 160 barrels so insured were destroyed by said fire; that they were of the value of 37 1/2 cents each, total, $59.20; that October 1, 1889, the adjuster and state agent...