Campbell v. Am. Fire Ins. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: TAYLOR
• Citation: Campbell v. Am. Fire Ins. Co., 73 Wis. 100, 40 N.W. 661 (Wis. 1888)
• Decision Date: 04 December 1888
• Parties: CAMPBELL v. AMERICAN FIRE INS. CO.

73 Wis. 100

40 N.W. 661

CAMPBELL

v.AMERICAN FIRE INS. CO.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

Action by C. H. Campbell against the American Fire Insurance Company of Philadelphia, to recover from defendant $500 on account of loss by fire of a quantity of baled hay. Judgment in favor of plaintiff, and defendant appeals.Winans & Hyzer, ( M. H. Beach, of counsel,) for appellant.

Fethers, Jeffris & Smith, for respondent.

TAYLOR, J.

The respondent brought this action against the appellant to recover the value of a quantity of hay owned by him, and which had been destroyed by fire on the 18th day of July, 1887. The facts stated in the complaint, and established by the evidence on the trial of the action, and upon which the respondent claims the right to recover of the appellant the value of the hay so destroyed, are substantially as follows: The respondent alleges in his complaint that one Burr Sprague was an agent of said insurance company, residing at the village of Brodhead, in this state, and was duly authorized by said company to make contracts of insurance against loss by fire, on behalf of said company, and issue the policies of said company therefor. The complaint then contains the following allegations: “That on and prior to the 2d day of July, A. D. 1887, this plaintiff was the owner of and in possession of a large quantity of baled hay, of the value of about $1,200, which said hay was situated, located, and stored upon lands within the village of Brodhead, Green county, Wisconsin, in a tobacco shed owned by one J. B. Kirkpatrick, and in possession of Jacob Bush, situated in block 206, in said village of Brodhead. That said hay was owned by and was in possession of the plaintiff herein. That said hay was on the 2d day of July, 1887, and on the 18th day of July, 1887, and just before and at the time of the fire hereinafter mentioned, of the value of about $1,200; that on the 2d day of July, 1887, this plaintiff made an agreement with the above-named defendant, through its agent, the said Burr Sprague, for the insurance of said hay by said defendant against loss or damage by fire to an amount not exceeding $500, for the sum of $3 premium, said insurance to run for a period of six months from the 4th day of July, A. D. 1887, at twelve o'clock noon, to the 4th day of January, A. D. 1888, at twelve o'clock noon, upon the hay above described; that this plaintiff, in consideration of said insurance, agreed to and did pay the said defendant $3 premium on such insurance; that on the 2d day of July the said defendant, by its agent, Burr Sprague, agreed to and with this plaintiff that the said defendant would write a policy of insurance on said hay so as to protect said plaintiff from loss or damage thereon to an amount not exceeding $500, which said insurance and policy was to take effect and be in force for six months from and after the 4th day of July, A. D. 1887, at twelve o'clock noon; that the policy so agreed to be written was never delivered to this plaintiff, and this plaintiff is informed and believes that the same was never written by the said defendant, or its agent; that on or about the 19th day of July this plaintiff demanded of the said defendant and its said agent said policy so agreed to be written; that he was then informed by said Burr Sprague that no policy had been written; that on the 18th day of July, A. D. 1887, the said hay was totally destroyed by fire, and rendered valueless.” The complaint further alleges that the plaintiff had procured no other insurance upon said hay previous to its destruction by fire as stated; that he notified the appellant company of the destruction of said hay by fire, and demanded pay for the value of said hay so destroyed, not exceeding $500, and that the appellant refused to pay for the same or any part thereof. The answer denies that the agent, Burr Sprague, had authority to make the contract of insurance set forth in the complaint; denies having knowledge sufficient even to form a belief as to whether the plaintiff was the owner of the hay described in the complaint, or as to whether such hay was destroyed by fire, as alleged in the complaint, and requires plaintiff to make proofs of said facts; denies making any agreement to insure said hay for any sum or for any length of time, for the premium of three dollars, or any other premium; denies that plaintiff agreed to pay said three dollars, or any other sum, for such insurance; denies that any policy was written or agreed to be written on said hay, as alleged by the plaintiff. The answer then admits the receiving of a notice of the loss, but claims that the same was not a sufficient notice. The answer then sets up the form of the policy the company would have issued, if one had been issued in conformity to the claim made by the plaintiff, and sets up that by the terms of such policy no action could be maintained against the company for any loss thereunder until 60 days after proofs of loss had been given to the company, as required by said policy; and alleges that this suit is prematurely brought. The answer also sets out at length the conditions of their policies in regard to proofs of loss, and alleges that the plaintiff has failed to make proofs of loss, as required by such policies, and for that reason cannot recover in this action. The answer also sets up other conditions of the policies of said company in regard to surveys and representations and statements made by the insured in regard to the insured property, and alleges that the plaintiff, in violation of the said terms and conditions, concealed from the defendant company and its agent certain facts as to what other property there was in the building in which the hay was situated at the time he applied for insurance thereon, as stated in his complaint; and alleges that the other property in said building greatly increased the risk and danger from fire; and alleges that by reason of this concealment the contract for insurance alleged to have been made with the agent of the company, if so made in fact, was rendered null and void.

On the trial, it was clearly established by the evidence of Burr Sprague that he was the agent of the defendant, and had full authority to take risks against fire for said company, and issue their policies covering such risks. And no contention is made on the hearing of this appeal that such agent could not have bound the company by issuing a policy of insurance upon the hay in question. The evidence in regard to the contract of insurance is the evidence of the plaintiff and of said agent Sprague. The plaintiff testified as follows: “I saw Mr. Sprague about that hay on the 2d day of July, 1887, about 5 o'clock P. M. He was sitting on a dry-goods box in front of Terry's store. I had a conversation with him about that hay. I said ‘Sprague, I have got a little baled hay that I want to get insured.’ He says, ‘Where is your hay?’ I told him it was in Jake Bush's tobacco shed. He said, ‘How far is that shed from his house?’ I told him the shed was in the north-east corner of the block, and his house was in the north-west corner,--just across,--opposite. He says, ‘How much have you got, and how much insurance do you want on it?’ I said $500. He said, ‘I can write you in the American Fire Insurance Company, the same that your ice-house was insured in;’ or he first asked, ‘How long do you want it?’ I told him two or three months, and he says, ‘You better have it for six months. It will cost you no more for six months than it will for two or three months.’ ‘Well,’ said I, ‘all right.’ Says he, ‘I will write you the risk for $3.’ He says, ‘Really, the rates would be only $2.50, but I cannot write a policy for less than $3.’ I says, ‘That is all right; that was cheaper than I expected to get it.’ I told him I was fearful about the 4th of July. It was so dry that it might get on fire. ‘Oh,’ said he, ‘I will have the policy take effect on the 5th of July at noon.’ ” The 4th of July was on Sunday. Sprague's testimony on the same subject is as follows: “On July 2, 1887, Mr. Campbell told me he wished some insurance on some hay he had,--an amount of hay on which he wished insurance. I asked him as to the condition of the hay, whether it was loose hay or baled hay, and he said it was baled hay. I asked him where it was. He said it was in the Bush barn, on what is known as the ‘Bush block;’ and I asked him how much he had there, and he said ‘$800 or $1,000 worth,’ somewhere along there. I asked him how much insurance he wanted. He said he wanted $500 insurance. I asked him if he pressed hay there in the barn. He said, ‘No;’ he pressed it away from there, and stored it there. I asked him if there was any loose hay in the barn--unpressed hay. He said, ‘No.’ I then asked him if he knew the distance between that barn and the house, and particularly whether it was more than 100 feet. I said to Mr. Campbell that insurance...