Clute v. Clintonville Mut. Fire Ins. Co.

• Decision Date: 31 January 1911
• Citation: 144 Wis. 638,129 N.W. 661
• Parties: CLUTE ET AL. v. CLINTONVILLE MUT. FIRE INS. CO. ET AL.
• Court: Wisconsin Supreme Court

144 Wis. 638

129 N.W. 661

CLUTE ET AL.

v.CLINTONVILLE MUT. FIRE INS. CO. ET AL.

Supreme Court of Wisconsin.

Jan. 31, 1911.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Louis E. Clute and others against the Clintonville Mutual Fire Insurance Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

This action was brought to recover for fire loss under policies of insurance issued by the defendant companies to the plaintiffs. In the answers interposed liability was denied on various grounds. So far as it is necessary to consider these defenses on this appeal, they were: (1) Plaintiffs were guilty of fraud and false swearing in making their proofs of loss, in that they represented the value of the property insured to be $6,400, when, in fact, it did not exceed $600; (2) that they represented themselves to be the owners of the property, and that it was not incumbered, when in fact they did not own it; (3) that plaintiffs violated a provision contained in each of the policies by keeping and storing gasoline on the premises, and thereby forfeited their right to recover; (4) that fraudulent representations were made in the applications for insurance, both as to the ownership and the value of the insured property. There was a verdict and judgment for the plaintiffs, and from this judgment defendants appeal.Phillips & Hicks (N. P. Christensen, of counsel), for appellants.

Churchill, Bennett & Churchill (Bouck & Hilton, of counsel), for respondents.

BARNES, J. (after stating the facts as above).

The evidence was ample to sustain the finding of the jury that the plaintiffs were the owners of the goods destroyed and damaged by the fire, and also the finding that the value of the insured property at the time of the fire was $6,729.47. No discussion of the evidence bearing on these points will be indulged in.

By its answer to question 6 of the special verdict, the jury found that the plaintiffs did not permit gasoline to be “kept or allowed” on the premises. Each policy provided that it should be void if gasoline were kept, allowed, or used on the premises without the consent of the insurer being indorsed thereon, and no such consent was given. The testimony in reference to gasoline was to the effect that a week or two before the fire the plaintiff Clute ordered five gallons of gasoline, not intended for use in the factory or to be kept therein, without directing where it should be sent, and that it was delivered at the factory while Mr. Clute was out; that he returned very shortly thereafter, and found the gasoline, and instructed one of the employés to set it outside, and that it remained outside until Clute was going home to supper, when he took it with him. The evidence tended to show that the gasoline was kept in the factory but a very few minutes, and that it did not remain outside to exceed an hour before it was taken away. There was testimony also offered on the trial to show that the fire resulted from an explosion; the defendants claiming that the explosion was caused by gasoline and the plaintiffs claiming that it was caused by the accumulation and ignition of coal gas in a coal stove. The appellants contend that the court erred in submitting question 6 to the jury and also in charging the jury in reference thereto. Appellants' counsel requested the submission of this question, and are in no position to assert error because their request was complied with. The court instructed the jury that the words “kept or allowed,” as used in the policies of insurance, did not “refer to the temporary presence on the premises of gasoline”; furthermore, that the prohibition meant something more than a mere casual taking of gasoline on the premises and removing it soon after; also, that the burden of proof was upon the defendants to show by a fair preponderance of the evidence “that the plaintiff exposed the property insured to the additional hazard of habitually keeping gasoline upon the premises for a considerable time” before the jury would be warranted in returning an affirmative answer to question 6. If there is any vice in the charge of the court, it is found in the foregoing excerpts, although they embody but a small portion of the charge to which exception is taken. That the instructions given were correct in the abstract is very generally held. Mears v. Ins. Co., 92 Pa. 15, 37 Am. Rep. 647;Smith v. Ins. Co., 107 Mich. 270, 65 N. W. 236, 30 L. R. A. 368;Hynds v. Ins. Co., 11 N. Y. 554;Williams v. Ins. Co., 54 N. Y. 569, 13 Am. Rep. 620;First Congregational Church v. Ins. Co., 158 Mass. 475, 478, 479, 33 N. E. 572;Williams v. Ins. Co., 31 Me. 219;Maryland F. I. Co. v. Whitford, 31 Md. 219, 1 Am. Rep. 45;Springfield F. & M. Ins. Co. v. Wade, 95 Tex. 598, 68 S. W. 977, 58 L. R. A. 714, 93 Am. St. Rep. 870;Phœnix Ins. Co. v. Flemming, 65 Ark. 54, 44 S. W. 464, 49 L. R. A. 789, 67 Am. St. Rep. 900;Szymkus v. Ins. Co., 114 Ill. App. 401; Thompson v. Ins. Co., 17 Ont. L. Rep. 214. Many additional cases will be found cited in the notes to the last case as reported in 13 Am. & Eng. Ann. Cas. 532. The instructions as applied to the facts in the case before us were not erroneous. They were evidently framed to meet the testimony offered as to the circumstances under which gasoline was brought to the premises in the first instance and as to the length of time it remained, and we think were so understood by the jury. The court might well have instructed the jury that, if this testimony were found to be true, the provision of the policy was not violated.

There was some evidence offered in behalf of the defendants from which the jury might have inferred that the fire was caused by an explosion of gasoline vapor, and it is argued that the jury might have interpreted the instructions given as meaning that there was no violation of the policies, even though the gasoline was permitted to remain on the premises from the time it was delivered until the fire occurred. We are not called upon to decide whether the instructions would be erroneous if they...