Glassner v. Detroit Fire & Marine Ins. Co.
| Citation | 127 N.W.2d 761,23 Wis.2d 532 |
| Parties | William E. GLASSNER, Jr., et al., Appellants, v. DETROIT FIRE AND MARINE INSURANCE COMPANY, Respondent. |
| Decision Date | 28 April 1964 |
| Court | United States State Supreme Court of Wisconsin |
Arnold, Murray & O'Neill, Milwaukee, Glassner, Clancy & Glassner, Milwaukee, of counsel, for appellants.
Wickham, Borgelt, Skogstad & Powell, Milwaukee, for respondent.
1. Liability for the loss. Plaintiffs appear to have been uncertain whether the damaged pump was an item of contents or a part of the dwelling building. The coverage provisions applicable to contents are different from those applicable to the building. If the pump were an item of contents, plaintiff needed to establish that the loss was caused by one of several listed perils, one of which was fire. They attempted to prove loss by fire by the charring which indicated short circuiting, and relied on the policy definition of loss by fire so as to include sudden and accidental injury to electrical appliances resulting from electrical currents artificially generated. If, on the other hand, the pump were part of the dwelling, it was insured against all risks of physical loss, except those excluded by the terms of the policy. Defendant did not plead that the cause of the loss fell within any exclusion.
Upon the trial plaintiffs seem to have preferred the theory that the pump was an item of contents and damaged by fire. They did, however, make known their alternative theory. On appeal they accept the finding of the circuit court that the pump was part of the building, and rely upon the alternative theory. They contend that it was unnecessary to prove that the pump (as part of the building) was damaged by fire, that they were required only to establish that the loss was occasioned by accident, and that defendant had the burden of pleading and proving any exclusion.
Defendant contends that even though the pump is part of the building, plaintiffs pleaded and tried their case on the theory of a fire loss and can not seek relief on a different theory on appeal. This argument, we conclude, must fail. The language of the complaint, though referring at times to loss by fire, was broad enough to state a cause of action for fortuitous loss of a portion of the dwelling as well as for loss by fire of an item of contents, and the record shows that plaintiffs' counsel brought the alternative theory to the attention of the court and defendant's counsel at the trial.
The evidence as to the cause of the failure of the pump and motor is inconclusive. It suggests, at least, that water may have leaked into the electric motor which was in a capsule underneath the pump (and also submerged) and this may have caused the electrical short circuits and damage to pump, motor and controls. It may be that the leakage resulted from normal deterioration or wear of parts of the mechanism. From the evidence alone, one might conclude that plaintiffs failed to prove that the damage was fortuitous, as contrasted with an ordinary and almost certain consequence of the inherent qualities and intended use of the equipment.
Defendant, however, is in the position of having stipulated that the pump was damaged 'by accident and misfortune and without fault or negligence on the part of plaintiffs' and of having failed to plead or prove that the cause of the loss was excluded from coverage.
An 'all-risk' policy is a promise to pay for loss caused by a fortuitous and extraneous happening, but it is not a promise to pay for loss or damage which is almost certain to happen because of the nature and inherent qualities of the property insured. 1
The insured under an 'all-risk' policy has the burden of proving the loss, at least, and, in addition, according to some authorities, that the loss was fortuitous. Once these are established, the burden is upon the insurer to prove that the loss arose from a cause which is excepted. 2
We consider that plaintiffs had the burden of establishing not only that damage occurred, but that it was fortuitous, i. e., that it resulted from a 'risk,' as contrasted with being an ordinary and almost certain consequence of the inherent qualities and intended use of the property. With these facts established, plaintiffs would be entitled to recovery unless the defendant pleads and proves...
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