Hotchkiss v. Phœnix Ins. Co. of Brooklyn
| Decision Date | 18 March 1890 |
| Citation | 76 Wis. 269,44 N.W. 1106 |
| Parties | HOTCHKISS v. PHœNIX INS. CO. OF BROOKLYN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Winnebago county.
The defendant company issued its policy of insurance, dated March 21, 1888, whereby it insured the plaintiff for three years against loss or damage by fire in the sum of $600, on a dwelling-house in Omro, and $400 on household furniture, etc., therein. The house was occupied by a tenant, except a room therein in which the plaintiff kept the insured personal property. These facts were known to the agent of the company who issued the policy. About November 1, 1888, the tenant moved out of the house, and the same thereby became unoccupied, except that the insured personal property remained therein, and the plaintiff visited the house two or three times a week until November 23, 1888, when all the insured property, which was of greater value than the insurance thereon, was destroyed by fire. Due proofs of loss were furnished the company as required by the policy. The company refused to pay the loss, claiming it was relieved from liability therefor by a condition in the policy to the effect that if, during the term of the insurance, the insured premises should become vacant or unoccupied, the policy should be of no force or effect during the time the premises should continue vacant or unoccupied. This action was brought on the policy to recover the amount of the insurance. The plaintiff recovered, and the company appeals from a judgment against it for the amount of the insurance. The testimony and rulings of the court on the trial are sufficiently stated in the opinion.Charles W. Felker, for appellant.
Bouck & Hilton, for respondent.
LYON, J., ( after stating the facts as above.)
The testimony tends to show that, immediately after the tenant vacated the insured house, the plaintiff went to see the agent of the defendant company at Omro, where the insured property was situated, informed him that the tenant had so removed, and asked him if her insurance was good, or, if it needed any change, what she should do, and that the agent replied that her insurance was good just as it was, and agreed to carry it in that way for 30 days. Also, the question having been suggested to the agent whether the house would be considered occupied while the plaintiff's goods remained in it, he said it would, and there was no need of a vacancy permit to save the insurance while it was occupied in that way. This conversation occurred with the agent who issued the policy, and less than 30 days before the insured property was burned. The above testimony was controverted by other testimony on behalf of the defendant. The court instructed the jury that, if they found the defendant's agent did tell the plaintiff, in substance, that the policy would hold good for 30...
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