Flatley v. Phenix Ins. Co.

• Decision Date: 07 April 1897
• Parties: FLATLEY v. PHENIX INS. CO.
• Court: Wisconsin Supreme Court

95 Wis. 618

70 N.W. 828

FLATLEY

v.PHENIX INS. CO.

Supreme Court of Wisconsin.

April 7, 1897.

Appeal from circuit court, Oconto county; Samuel D. Hastings, Jr., Judge.

Action by J. J. Flatley against the Phenix Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action upon a policy of insurance, issued by the defendant company to the plaintiff, in the sum of $500, to wit, $300 on his building, and $200 on his stock of liquors and saloon fixtures therein. The property insured was totally destroyed by fire, June 14, 1895, notice of which was immediately given to the defendant; but proof of loss was not furnished to it until more than 60 days after the fire, namely, October 8, 1895. After the lapse of more than 60 days thereafter, the loss remaining unpaid, this action was brought for its recovery. The defense relied on is that by the failure to furnish the defendant with proof of loss within 60 days after the fire, as required by the policy, the plaintiff was precluded from recovering the amount of the loss. The policy contained, among others, the following provisions: “The sum for which this company is liable, pursuant to this policy, shall be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received by this company, in accordance with the terms of this policy.”“If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and within 60 days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire,” etc. The policy did not provide that it should be void, or that no recovery should be had thereon, in case of the failure to furnish proof of loss within the stipulated period of 60 days, but it did contain many provisions expressly rendering the policy void upon other grounds, and that, in certain cases therein stated, the company would not be liable, or the policy should immediately cease. These facts appearing upon trial by the court, there was a finding in favor of the plaintiff for the amount of the policy and interest, upon which he had judgment, from which the defendant appealed.Mylrea, Marchetti & Bird, for appellant.

Webster & Classon, for respondent.

PINNEY, J. (after stating the facts).

There is no substantial difference between the provisions of the policy upon which this action is founded, in respect to the defense relied on, and the provisions in the case of Vangindertaelen v. Insurance Co., 82...