Dohlantry v. Blue Mounds Fire & Lightning Ins. Co.

• Decision Date: 25 October 1892
• Parties: DOHLANTRY ET AL. v. BLUE MOUNDS FIRE & LIGHTNING INS. CO.
• Court: Wisconsin Supreme Court

83 Wis. 181

53 N.W. 448

DOHLANTRY ET AL.

v.BLUE MOUNDS FIRE & LIGHTNING INS. CO.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Dane county; R. G. SIEBECKER, Judge.

Action by Michael and John Dohlantry against the Blue Mounds Fire & Lightning Insurance Company. Judgment for defendant. Plaintiffs appeal. Reversed.

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

This is an action upon a policy of insurance. Defendant is a town insurance company, organized on the mutual plan, pursuant to the statute. On November 21, 1884, it issued its policy No. 979 to Mrs. John Dohlantry, insuring her against loss of, or damage by fire or lightning to, a dwelling house and its contents, in the sum of $525, and certain barns and a granary, and their contents, and on certain stock, all on the same farm with such dwelling house, to the amount of $1,050,--in all, $1,575. The amount of insurance on each building, and each kind of property, and on the stock, is separately specified in the policy. The plaintiffs are the owners of the insured property by descent from Mrs. Dohlantry, now deceased, whose children and heirs they are, and one of them is the administrator of her estate. On March 26, 1887, the insured dwelling house and a portion of the insured contents thereof were destroyed by fire. Such dwelling house had not been occupied as a residence for more than a year before the fire, but the insured furniture constantly remained therein. On April 1, 1887, one of the owners of the insured property went before the board of directors of the insurance company, and submitted to an examination concerning the loss. After such examination the board passed the following resolution: “It being clearly shown to the board of directors that said house was not occupied, but vacant, for four months previous to the fire, thereby excluding the company from the liability as per section 12 by-laws. Motion carried that the claim of Mr. Dohlantry be disallowed.” Section 12 of the by-laws, above mentioned, is as follows: “This company will not insure unoccupied dwelling houses, and will not be liable for nor pay any loss on any dwelling house which has been vacant for thirty days previous to the occurrence of the loss.” The company made no further declaration of a forfeiture of the policy. In January, 1888, and again in January, 1889, the board of directors reported to the company the policy in suit as a valid policy for the whole amount of $1,575. On May 7, 1889, an assessment of 2 per cent. was made by the board of directors on this policy, and all other oustanding policies issued by the company, to pay losses which occurred after the plaintiffs' dwelling house and contents were burned. The plaintiffs paid this assessment to the treasurer of the company, and the payment was duly reported to the board of directors and the company, neither of which repudiated the assessment of plaintiffs' policy. On the above facts the circuit court directed a verdict for the defendant, holding that the policy in suit had become forfeited by nonoccupancy of the insured dwelling house, and judgment was ordered accordingly. Plaintiffs appeal from the judgment.

Bashford, O'Connor & Polleys and J. A. Aylward, for appellants, on the proposition that the levy, acceptance, and retention of the assessment upon this policy by the company, with knowledge of all the facts constituting the alleged breach of contract, was a waiver of any breach known at that time, cited Erdmann v. Insurance Co., 44 Wis. 376;Joliffe v. Insurance Co., 39 Wis. 111;Jerdee v. Insurance Co., 75 Wis. 345, 44 N. W. Rep. 636;Palmer v. Insurance Co., 44 Wis. 201;Osterloh v. Insurance Co., 60 Wis. 126, 18 N. W. Rep. 749;Morrison v. Insurance Co., 59 Wis. 162, 18 N. W. Rep. 13.

Olin & Butler and B. W. Jones, for respondent.

LYON, C. J., ( after stating the facts.)

I. Counsel for plaintiffs maintained in their argument that the above by-law, § 12, is not violated unless the insured dwelling house is left entirely without inhabitants or goods therein, while counsel on behalf of the company maintains that it was violated, and the policy rendered void, because no person dwelt in the house for 30 days and more before it was burned, although the usual furniture was allowed to remain therein. The arguments display great research, and numerous cases and authorities are cited in support of these respective positions. We do not deem it necessary to discuss and determine here the question whether any difference exists in the signification of the terms “unoccupied” and “vacant,” as they are usually employed in insurance policies, or, if so, what is the precise signification of each term; for we are satisfied that the term “vacant,” as employed in the policy in suit, is the equivalent of “unoccupied.” It is conceded that the latter term signifies only that the house is...