Harriman v. Queen Insurance Company of London & Liverpool

• Citation: 5 N.W. 12,49 Wis. 71
• Parties: HARRIMAN and another v. THE QUEEN INSURANCE COMPANY OF LONDON AND LIVERPOOL
• Decision Date: 30 March 1880
• Court: United States State Supreme Court of Wisconsin

5 N.W. 12

49 Wis. 71

HARRIMAN and another v. THE QUEEN INSURANCE COMPANY OF LONDON AND LIVERPOOL

Supreme Court of Wisconsin

March 30, 1880

Argued March 12, 1880

APPEAL from the Circuit Court for Brown County.

This action is upon a policy of insurance issued January 16, 1879 by the defendant company to the plaintiff Rufus P. Harriman insuring him in the sum of $ 3,000 against loss or injury by fire to his three-story brick hotel building, situated on certain lots therein described, in the city of Green Bay.

The complaint contains a copy of the policy, by which it appears that the loss, if any, was, by indorsement thereon, made payable to the plaintiff Mrs. Carabin, mortgagee, as her interest might appear. The complaint alleges that the interest of Mrs. Carabin in the real estate upon which the insured buildings stood, amounted to $ 25,000; that there was $ 17,000 additional insurance in other companies on the hotel, to which the assent of the defendant was duly given that, subject only to the incumbrances of his co-plaintiff Harriman was the absolute owner of the hotel during the life of the policy; that the hotel was totally destroyed by fire March 8, 1879; and that due proofs of loss were made pursuant to the requirements of the policy. Full compliance by the assured with the terms, conditions and requirements of the policy is alleged generally. Judgment is demanded in favor of Mrs. Carabin alone for the sum written in the policy, with interest from May 25, 1879, and for costs.

The answer is very long, but the following abstract of it, copied substantially from the brief of counsel for defendant, will sufficiently show its contents:

"First. The answer (1) denies that the plaintiff Harriman was owner of the property at the date of the policy; (2) admits the execution of the policy, and pleads it as being the only contract between the parties; (3) admits partial destruction but denies total destruction, and alleges that after the fire the foundations and much material and portions of the walls remained, of considerable value; (4) denies that the fire was not caused in consequence of disregard by the assured of the terms and conditions of the policy, and alleges that it was caused by direct disregard thereof; (5) admits that the building was occupied by one L. H. Harriman as a hotel; (6) denies that the actual cash value of the hotel at the time of the fire was $ 30,000, or that the total loss suffered, estimated according to the actual cash value of the property, was $ 30,000, and alleges that the actual cash value and actual damage did not exceed $ 5,000; (7) admits the furnishing of proofs and annexes them; denies that they were accepted, and alleges that defendant at once denied liability and refused to pay; (8) denies any knowledge or any information sufficient to form a belief as to the alleged interest of the plaintiff Carabin; (9) denies that the plaintiff Harriman, at the time of the fire, or at any time during the life of the policy, was the sole or absolute owner of the property, and alleges that the title was vested in Henley W. Chapman, as thereafter stated; (10) admits the other insurance permitted, making $ 20,000 in all; (11) denies that plaintiffs have duly performed the conditions, and denies all other allegations not otherwise answered unto, admitted or denied.

"Second. For a second defense the answer alleges that Harriman has no interest in the subject of the action, and that it was brought without his knowledge, direction or assent, and should therefore be dismissed.

"Third. For a third defense it is alleged that, by the policy, the application, survey, plan or description should be considered a part of the contract and a warranty by the assured; that in case of any false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or any overvaluation, or any misrepresentation whatever, either in a written application or otherwise, or in case the interest of the assured in the property is not truly stated in the policy, then and in every such case the policy should be void; and that there had been a breach of all said provisions in these respects: 1. That Harriman, at the date of the policy, falsely represented the condition and situation of the property, and falsely represented, in reply to interrogatories, that the incumbrances did not exceed from $ 12,000 to $ 16,000, and that in no event could they exceed $ 16,000, and that he falsely and purposely concealed from defendant's agent a mortgage of $ 5,000 to Katharine G. Curtis, dated October 30, 1868, at ten per cent., upon which no principal or interest had been paid, whereas the incumbrances exceeded $ 20,000, exclusive of certain taxes and judgments and mechanic's liens, which were liens thereon, amounting to $ 11,000 and upwards. 2. That Harriman omitted to make known the following facts material to the risk: the existence of the Katharine G. Curtis mortgage, judgments and mechanic's liens, enumerated, amounting to $ 7,434.18, besides interest, and taxes amounting to $ 3,135.74, besides interest. 3. That his interest was other than the entire, unconditional and sole ownership, and that on March 20, 1878, he had conveyed the property to Henley W. Chapman, who, at the date of the policy, was owner thereof, and had full title thereto in fee, subject to the incumbrances of mortgages, judgments and taxes. 4. That Harriman overvalued the property at $ 20,000, when it was worth not to exceed $ 5,000. 5. That Harriman's interest in the property was not truly stated in the policy, he having conveyed it to Chapman.

"Fourth. For a fourth defense it is alleged, that by the policy it was agreed that if the interest of the assured was not truly stated in the policy, it should be void; that the interest of the assured was not truly stated, and was other than the entire, unconditional and sole ownership; that the property had theretofore been conveyed to Chapman; that the property was incumbered by the mortgages, judgments, mechanics' liens and taxes before set forth; that no representations in regard to said Harriman's or said Chapman's ownership were made, except that the premises were incumbered from $ 12,000 to $ 15,000 by mortgages; that otherwise the interest of Harriman and said liens were concealed and omitted to be stated; and that none of these facts were expressed in the written portion of the policy, whereby it was void from its inception.

"Fifth. For a fifth defense it is alleged, that by the terms of the policy the loss was payable only after sixty days from due notice and proof of loss; that the proofs of loss were to state the actual cash value of the property, the interest of the assured, and, if that were other than entire and sole ownership, the names of the owners and their interests; that until such proofs were made the loss was not to be payable; that the proofs did not state the actual cash value, but largely overstated it at $ 30,000, when it did not exceed $ 5,000; that they did not truly state the interest of the assured, but stated that the property belonged to Harriman in fee, whereas it had been conveyed to Chapman, etc. This defense claimed, therefore, that the proofs of loss provided by the policy had never been made, that the cause of action upon the policy had not yet accrued, and that the action should be abated.

"Sixth. For a sixth defense the answer sets up the provision of the policy that all fraud or attempt at fraud or false swearing should forfeit the policy; and it alleges fraud and false swearing in these particulars: 1. Fraud in that the fire was caused by the fraud of the insured. 2. False swearing as to the value of the property; as to its being owned by Harriman in fee simple; as to the amount of the loss; and as to the cause of the fire being unknown, and its not having originated from the assured's procurement, fraud, etc."

After the jury were empanelled, defendant demanded that the issue made in the above fifth defense should be tried separately from and before the trial of the other issues made by the pleadings. The court ruled that all of the issues should be tried together, and they were so tried. The court directed the jury to return a special verdict in the form of answers to questions prepared by counsel for the respective parties, and refused to direct the jury to return a general verdict. Such questions, and the answers of the jury thereto, are as follows:

"1. At the time of the execution of the assignment by Harriman to the receiver, Henley W. Chapman, to wit, on the 20th day of March, 1878, did the plaintiff, with his family, reside in the hotel insured? Yes.

"2. Did the said Harriman and family at said time so reside in said hotel, claiming and intending it to be his home? Yes.

"3. Did the said Harriman, from the completion of the hotel in 1868, so reside in said hotel as his home at all times when in the city of Green Bay, until his removal to the house on Walnut street, shortly before the fire? Yes.

"4. Did the said Harriman have any other home than said hotel at any time from the building of the same until up to and after the issuing of the policy of insurance in question? No.

"5. Was there any portion of the brick walls of said building that could be used for rebuilding it after said fire? No.

"6. Was the foundation left after said fire sufficient to support a building of the same weight and dimensions of the building burned? No.

"7. Could a new building like the one burned have been built upon the same spot after the fire without incurring expense in getting rid of worthless fragments of the old building, at least equal to the full value of all that was left of the building burned? No.

"8. ...