Home Mut. Ins. Co. of Cal. v. Roe

• Decision Date: 28 February 1888
• Citation: 71 Wis. 33,36 N.W. 594
• Parties: HOME MUT. INS. CO. OF CALIFORNIA v. ROE.
• Court: Wisconsin Supreme Court

71 Wis. 33

36 N.W. 594

HOME MUT. INS. CO. OF CALIFORNIA

v.ROE.

Supreme Court of Wisconsin.

February 28, 1888.

Error to circuit court, Winnebago county.

January 26, 1885, J. H. Weed, in behalf of G. W. Roe, through one L. D. Harmon, an insurance agent at Oshkosh, and in consideration of $60 paid to the Home Mutual Insurance Company of California, obtained from it, by the hands of its agents at Oshkosh, Palmer & McLaren, a written policy of insurance issued by said company, wherein and whereby it insured said “G. W. Roe against loss or damage by fire, to the amount of $1,000 in United States gold coin, viz.: $250 on his one-story frame planing-mill building and addition, situate at Antigo, Langlade county, Wis.; $750 on machinery, including shafting, gearing, belting, saws, tools, force-pump, and hose therein;” and wherein said company agreed “to make good to the assured, or his legal representatives, all such immediate loss or damage, not exceeding in amount the interest of the assured, nor the sum insured, as aforesaid, as” should “happen by fire to the property above specified, from the 26th day of January, 1885, at noon, to the 26th day of January, 1886, at noon.” The complaint, among other things, alleged that a fire occurred June 29, 1885, by which the said planing-mill was damaged and destroyed by fire to the amount of $175, and said machinery was destroyed and damaged by fire to the amount of $750; also, the making of proofs of such losses, respectively, and delivering the same to said company; and negativing the exceptions in the policy; and alleging the failure to pay; and demanding judgment for $925, with interest from November 1, 1885, with costs. The answer of the company specifically admitted the incorporation of the company; the making and issuing of the policy; that the fire was not caused by any of the negative things alleged; that proofs of loss had been made as stated; that no part thereof had been paid; but otherwise denied each and every allegation of the complaint; and alleged that the property so claimed to have been destroyed by fire, was not insured by the defendant, nor contained in, mentioned, described, or referred to in said policy; and that no part of the property insured in and by the policy, had at any time been injured, damaged, or destroyed by fire. The cause was tried by a court and jury; and at the close of the plaintiff's evidence, and on May 11, 1887, the defendant requested the court to direct a verdict in its favor, but the court refused and directed the jury to find for the plaintiff, G. W. Roe, and assess his damages at $1,022.12, which they accordingly did. From the judgment entered thereon the said company brings this writ of error.

C. W. Felker and Thos. Bates, for plaintiff in error.

Weisbrod, Harshaw & Nevitt, for defendant in error.

CASSODAY, J., ( after stating the facts as above.)

The important question presented is whether the engine-room and the machinery therein destroyed by fire, was covered by the policy. Much of the parol evidence offered on the part of Mr. Roe, was excluded on the ground that the contract was in writing and the best evidence. No evidence was offered on the part of the company. What little evidence there was admitted in the case is undisputed. It is to the effect that the planing-mill mentioned was on the south side of the mill pond; that, as a matter of security, the engine-room was 22 feet south of the planing-mill and contained the engine and machinery that was burned; that there was a three and a half inch wrought-iron shaft running from the planing-mill and connected with the engine, which furnished the only motive power for propelling the machinery in the planing-mill; that the engine pulley was belted on to this connecting shaft that run the planing-mill, and this connection was boxed up and covered in the mill; that there was a spout or box two and one-half feet square, and 10 feet above the ground or roadway, connected with the machinery in the planing-mill, through which the shavings produced therein were drawn by suction or forced by an exhaust fan into the engine-room; that there was no other connection between the two buildings; that there was a roadway between the two buildings and under such shaft and spout; that there were two or three machines connected in the planing-mill with the main conductor; that the force pump was run by water; that the engine-room was about 28 feet long and 25 feet wide; that the engineroom was entirely consumed by the fire, together with the belting, shafting, pulleys, and pump therein; that the connection between the two buildings was twisted all out of shape; that the spout through which the shavings were drawn was burned and was worth about $15; that some of the belting in the planing-mill was cut in the excitement of the moment at the time of the fire; that the value of the...