Center St. Fuel Co. v. Hanover Fire Ins. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: GEHL
• Citation: Center St. Fuel Co. v. Hanover Fire Ins. Co., 75 N.W.2d 462, 272 Wis. 370 (Wis. 1956)
• Decision Date: 06 March 1956
• Parties: CENTER STREET FUEL COMPANY, a Wisconsin Corporation, Plaintiff and Respondent, v. The HANOVER FIRE INSURANCE COMPANY, a Foreign Corporation, Defendant and Appellant.

Page 462

75 N.W.2d 462

272 Wis. 370

CENTER STREET FUEL COMPANY, a Wisconsin Corporation Plaintiff and Respondent, v. The HANOVER FIRE INSURANCE COMPANY, a Foreign Corporation Defendant and Appellant.

Supreme Court of Wisconsin.

March 6, 1956.

Rehearing Denied May 1, 1956.

H. O. Wolfe, Wolfe, O'Leary & Kenney, Milwaukee, for appellant.

Hersh & Magidson, Milwaukee, Frederick Hersh, Milwaukee, of counsel, for respondent.

GEHL, Justice.

The case of the plaintiff rests principally upon the testimony of Mr. Kelling, its President. For that reason and also because it appears to us that the testimony does not support the trial court's determination, we deem it necessary to make rather extensive reference thereto.

Mr. Kelling testified: When plaintiff corporation received the policy he looked it over and was disturbed because under item 1 which refers to the tank 'it said 'nothing". He called a Mr. Kessler of defendant's local agency and told him that he was 'disturbed because the policy did not cover the tank and equipment at all.' Kessler said that is easily corrected, how much coverage do you want on it? We agreed on an amount of $2,000. He also asked Kessler to increase the coverage under item 2 to $2,000. As a result of this telephone conversation plaintiff received exhibit 3. On cross-examination he repeated that when the policy was received he noticed that it provided coverage only on contents and not on the tank; he called Kessler on the telephone and told him that he was disturbed because the word 'nothing' appeared, that he wanted coverage on the tank as well as on the contents; that he wanted $2,000 on the tank and $2,000 on contents; the amendment, exhibit 3, which he received was in substantial compliance with what he asked for. On redirect examination he testified that in none of the discussions with Kessler did they ever distinguish between the pump house and the oil tank.

It will be observed that Mr. Kelling's concern when the original policy was received was with the fact that he found that the tank was not covered, that it was only that fact and the fact that he desired coverage of $2,000 instead of $1,000 on contents which he discussed with Kessler. He is in no position to say that he paid no attention to the amending endorsement when he received it; he must have read it, observed its contents and have seen that it would cover only the tank and not the pump house, for he testified that it was in substantial compliance with what he...