Filipkowski v. Springfield Fire & Marine Ins. Co.

• Decision Date: 10 November 1931
• Citation: 206 Wis. 39,238 N.W. 828
• Court: Wisconsin Supreme Court
• Parties: FILIPKOWSKI v. SPRINGFIELD FIRE & MARINE INS. CO.

206 Wis. 39

238 N.W. 828

FILIPKOWSKI

v.SPRINGFIELD FIRE & MARINE INS. CO.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the Circuit Court for Portage County; Byron B. Park, Circuit Judge. Affirmed.

Action by Joseph Filipkowski, plaintiff, commenced on the 31st day of October, 1930, against the Springfield Fire & Marine Insurance Company, defendant. From a judgment in favor of the defendant entered on the 26th day of February, 1931, the plaintiff appeals.W. E. Atwell, of Stevens Point, for appellant.

Shaw, Muskat & Sullivan and V. B. Wake, all of Milwaukee, for respondent.

OWEN, J.

On the 11th day of December, 1925, the Springfield Fire & Marine Insurance Company issued to Joseph Filipkowski its policy of fire insurance, covering his farm house, household furniture, some produce, and farm machinery, in the total sum of $5,350, for a period of five years. It appears that during the term of this policy the plaintiff temporarily removed to the city of Milwaukee, taking with him a part of his furniture. While so removed, the agent of the company made an attempt to reduce the amount of the coverage of the policy. He issued a rider to be attached to the policy, reducing the total coverage to $3,500. This rider was mailed to the plaintiff, together with the agent's personal check for $13.50 to cover the return premium resulting from the reduction in the coverage. There is a dispute in the record as to whether this reduction was made in pursuance of prior negotiations between the agent and the insured. However, the insured refused to accept the return premium.

In due time, plaintiff returned from Milwaukee, bringing with him a quantity of new furniture. He then applied to defendant's agent at Stevens Point for a reinstatement of the policy so that it would provide the original coverage. The defendant's agent refused to reinstate the original coverage, but it appears that he offered to write additional insurance in another company. At any rate, the plaintiff and the agent of the defendant did not come to any agreement with reference to the additional insurance, and the plaintiff procured additional insurance through another insurance agency in Stevens Point, and on the 17th day of October, 1929, another policy, issued by the East & West Insurance Company, was delivered to him, providing for $2,500 additional coverage on the same property. The property covered was destroyed by fire on the 26th day of March, 1930. The defendant denied liability under its policy, claiming it had been rendered void by the procuring of the additional insurance, and this action is brought to recover thereon.

The policy sued upon is in the usual standard form, and contains the following provision: “Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage occurring (a) while the insured shall have any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” It is conceded that the defendant company did not consent in writing to the additional insurance, nor was there any such agreement attached to the policy. The jury found that defendant's agent knew of the purpose of the plaintiff to secure additional insurance and consented thereto, notwithstanding which the court ordered judgment for the defendant.

[1][2][3] The exact situation here presented was thoroughly considered, and the authorities reviewed, in Struebing v. American Insurance Co., 197 Wis. 487, 222 N. W. 831. It was there held that the procuring of additional insurance, without the written consent of the company added to the policy of insurance, rendered the policy void during the time that such other insurance was in existence. Appellant's attorney realizes that the doctrine of the Struebing Case defeats recovery in this action, but for section 203.215 enacted by the Legislature following the decision of this court in the Struebing Case, by chapter 456, Laws 1929. That chapter reads as follows: “Whenever a condition is included in any fire insurance policy issued in this state that unless provided by agreement in writing added thereto the insuring company shall not be liable for loss or damage occurring while the insured shall have any other contract of insurance,whether valid or not, on property covered in whole or in part by such policy, such other or additional insurance, whether with or without knowledge of the insuring company, shall nevertheless not operate to relieve the insuring company from liability for loss or damage occurring while the insured shall have such other contract of insurance, whether valid or not. Subject to all other items and conditions of its policy, each insuring company shall be liable for its proportionate share of any such loss or damage, but in no event shall the insured be entitled to recover from any or all of such insuring companies a sum greater than his actual loss or damage.” The policy sued upon was issued in 1925. The above statute was enacted in 1929. The question is whether the statute is efficient to affect the provision of defendant's policy required by the standard policy law at the time of its issuance, and now as well, with reference to the procuring of other insurance.

We are clear that section 203.215 does not apply to...