Carey v. German Am. Ins. Co. of N.Y.

• Decision Date: 10 January 1893
• Citation: 54 N.W. 18,84 Wis. 80
• Parties: CAREY v. GERMAN AMERICAN INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

84 Wis. 80

54 N.W. 18

CAREY

v.GERMAN AMERICAN INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

Jan. 10, 1893.

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

Action by James Carey against the German American Insurance Company of New York, on a fire insurance policy. From a judgment for plaintiff, defendant appeals. Reversed.H. W. Chynoweth, for appellant, cited the following authorities: Brower v. Smith, 17 Wis. 422;Whitney v. Brunette, 3 Wis. 621;Rix v. Silknitter, (Iowa,) 10 N. W. Rep. 653;Bickler v. Kendall, (Iowa,) 24 N. W. Rep. 518;Mandelson v. Paschen, (Wis.) 37 N. W. Rep. 815; Insurance Co. v. Archibold, 16 Ins. Law J. 153; Wenzel v. Insurance Co., 67 Cal. 438, 7 Pac. Rep. 817;Bosworth v. Cleary, (Wis.) 49 N. W. Rep. 750;Knudson v. Insurance Co., 75 Wis. 203, 43 N. W. Rep. 954;Bonneville v. Assurance Co., 68 Wis. 298, 32 N. W. Rep. 34;Hankins v. Insurance Co., 70 Wis. 1, 35 N. W. Rep. 34;Kyte v. Assurance Co., 144 Mass. 43, 10 N. E. Rep. 518; Hale v. Insurance Co., 6 Gray, 169;President, etc., of Worcester Bank v. Hartford Fire Ins. Co., 11 Cush. 265;Putnam Tool Co. v. Fitchburg Mut. Fire Ins. Co., 145 Mass. 265, 13 N. E. Rep. 902; Barrett v. Insurance Co., 7 Cush. 175;Fitchburg Sav. Bank v. Amazon Ins. Co., 125 Mass. 431;Batchelder v. Insurance Co., 135 Mass. 449;Quinlan v. Insurance Co., (Sup.) 15 N. Y. Supp. 317, 31 N. E. Rep. 31; Hill v. Assurance Corp., (Com. Pl. N. Y.) 9 N. Y. Supp. 500;Walsh v. Insurance Co., 73 N. Y. 5;O'Reilly v. Assurance Corp., 101 N. Y. 575, 5 N. E. Rep. 568; O'Brien v. Insurance Co., (N. Y. App.) 31 N. E. Rep. 265; Enos v. Insurance Co., 67 Cal. 621, 8 Pac. Rep. 379;Shuggart v. Insurance Co., 55 Cal. 408; Insurance Co. v. Weiss, 106 Pa. St. 20; Insurance Co. v. Heiduk, (Neb.) 46 N. W. Rep. 481;Hutchinson v. Insurance Co., 21 Mo. 97;Carpenter v. Insurance Co., 16 Pet. 495.

John J. Wood, Jr., (Gabe Bouck, of counsel,) for respondent.

ORTON, J.

On the 14th day of September, 1889, the appellant company issued to the respondent a policy of insurance for $2,500 on his cranberries stored in his frame shingle roof warehouse, and in boxes piled next to said warehouse covered with canvas, situated in Waushara county, in this state. The policy provided that a part of the loss should be paid to one W. D. Williams, as his interest might appear. The insured property was nearly totally destroyed by fire on the 19th day of the same month. The plaintiff recovered a judgment for $2,812.46 as damages, besides costs. In said judgment it is ordered that $700 of said damages be paid to the said Williams, as the mortgagee of a part of the property. The defendant company has appealed from said judgment. In said policy of insurance there is the following condition of forfeiture, viz.: “Or if any change takes place in the title or possession of the property, (except in case of succession by reason of the death of the assured,) whether by sale, transfer, conveyance, legal process, or judicial decree, * * * then and in every such case this policy shall be void.” The main defense was that a change in the possession of the insured property took place by legal process according to this condition, and that thereby the policy was forfeited and became void. On the said 14th day of September, but after said policy was delivered and in force, one Frank W. Stanley, on the proper affidavit and bond, procured a writ of attachment against the property of said James Carey, the assured, and of one Richard Carey, to be sued out of the circuit court of Green Lake county; and on the same day the writ was duly served by a deputy sheriff, by attaching and seizing nearly all of said insured property, or except that part of it which had been conveyed to said W. D. Williams, consisting of 300 boxes of berries and the boxes containing them. The deputy sheriff made return on said writ that he had levied upon and seized said property on that day, and that he delivered to each of said defendants in the attachment copies of said writ, affidavit, and undertaking, and that before he could make a full inventory and appraisement of said property taken by the writ, all of it, except 14 boxes of cranberries and the boxes containing them, was destroyed and consumed by fire on the 19th day of September, 1889; and that he afterwards made an inventory of the part thereof not so destroyed, and had the same duly appraised, and delivered to the defendants therein copies of such inventory and appraisement. This brings us to the main questions in the case. The learned counsel of the respondent contends (1) that the said writ of attachment was not a “legal process,” mentioned in said condition; (2) that a change of possession of the property did not take place by such pretended levy of the attachment; (3) that, upon the company having notice of such change of possession, it should have exercised its option to continue the policy, or to declare it forfeited and void; (4) that there was a waiver of the condition and forfeiture by the local agent of the company, who negotiated the insurance.

1. Was the writ of attachment process? The statute would seem to settle this question beyond dispute. Section 2421, Rev. St., provides how “process” may issue. It shall be tested in the name of the judge, signed by the clerk, and sealed with the seal of the court. Section 2591, Id., provides that the clerk may deliver to any attorney “blank process and seals.” Section 2420, Id., provides “that circuit courts may issue writs of process and commissions.” Section 725, Id.: “The sheriff, under sheriff, and deputy may execute all processes, writs, precepts, and orders.” Section 2730: The writ of attachment is issued by the clerk at request. It is directed to the sheriff by the state, attested in the name of the judge, and sealed by the seal of the court; and before executed an affidavit must be made and an undertaking given. Section 2736: “The officer having the writ of attachment shall execute it by seizing the property of the defendant to satisfy the demand.” This writ has all the requisites of any writ or process named in the statutes. All writs are called “process” in the statutes. A writ is process, and process is a writ, interchangeably. If this writ of attachment is not process, then we have no process in this state. This writ was issued strictly according to law, and has all the requisites of a process anywhere.

2. Did the sheriff, in serving the writ, take possession of the property, or did he dispossess the insured? (1) The sheriff returns “that he seized the property on the writ.” (2) James Carey, the plaintiff, testified on the trial “that he told Tucker, the agent, that Stanley had attached their berries, and that he was going to try and fix it up, and pay Stanley.” (3) The plaintiff, long after the fire that destroyed the property, traversed the affidavit in the attachment in order to have it dismissed. If it had not been fully served, it could do no harm. (4) The questions and answers in the special verdict on the traverse assume a full service of the writ and levy on the property: “First. What were the number of boxes of cranberries levied upon under the writ of attachment? Answer. 1,658.” “Seventh. What other property of defendants was seized under the attachment, and destroyed by the fire?” Answered by the court. “Eighth. The value thereof when seized?” “Tenth. At the time of the seizure, how many berries remained unpicked?” “Twelfth. Were the berries that remained unpicked lost and injured by reason of such levy and seizure under said writ of attachment?” (5) The special verdict in this case finds that a levy of the attachment had been made. The first question is: “On the Monday next after the levy under the Stanley attachment, did A. L. Tucker, the local agent of the defendant, at Berlin, Wis., have knowledge that the levy proved under the Stanley attachment had been made?” Answered by the court, “Yes.” This question assumes that the levy had been proved. The second question is: “Did such local agent, on said Monday after the levy under said Stanley attachment, and after he had knowledge of such levy, agree with the plaintiff that the defendant's policy should remain in force upon the property insured?” Answer, “Yes.” There is not only a specific finding of the fact that a levy had been made, but the finding that the company waived the forfeiture is based upon such fact. The statute requires the officer having the writ of attachment to seize the property of the defendant, and the officer returns that he did seize the property; and the fact that he levied upon the property, or seized it, is found by the jury and by the court, and is a conclusive matter of record, and really not open for argument. D. C. Evans, the deputy sheriff who served the writ, testified on the trial that “he made a levy by taking possession of the berries, and continued in possession until they were burned.” It may be said that there may be evidence of record that the officer seized or levied on the property, but that that is no proof that he took exclusive possession of the berries. The legal definition of the word “seizure” is: “The taking possession of the property by an officer.” “They are seized when the goods are within the power of the officer.” Bouv. Law Dict. tit. “Seizure.” And so the legal definition of “levy” is: “To have the property within the power and control of the officer;” and the first definition is “seizure.” Id., tit. “Levy.” “When an officer seizes and possesses himself of chattels under a writ, in such manner as to enable him to maintain trespass or replevin against a wrongful taker thereof,” (Buckwheat v. Lumber Co., 75 Wis. 194, 43 N. W. Rep. 1130,) then it is a sufficient levy and service of the writ. There can be no doubt that the officer here stood precisely in that relation to the property. There can be no question but that Evans, the deputy sheriff, took exclusive possession of the property...