Housner v. Baltimore-American Ins. Co.

• Decision Date: 12 May 1931
• Citation: 236 N.W. 546,205 Wis. 23
• Parties: HOUSNER v. BALTIMORE-AMERICAN INS. CO.
• Court: Wisconsin Supreme Court

205 Wis. 23

236 N.W. 546

HOUSNER

v.BALTIMORE-AMERICAN INS. CO.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for Oconto County; Arold F. Murphy, Circuit Judge.

Action by Frank Housner against the Baltimore-American Insurance Company. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

The action was commenced by the plaintiff on July 26, 1929, to recover for damages to the plaintiff's automobile by virtue of the provisions of a theft policy issued by the defendant insurance company. From a judgment in favor of the plaintiff in the sum of $829.81, entered April 26, 1930, defendant appeals.

Plaintiff purchased a Willys Knight sedan on May 26, 1927. The car was new at that time. Plaintiff used it during the year 1927, until November, and then stored it until May, 1928. He used the car from May, 1928, until the 16th of October of the same year, when it was stolen. Upon the theft of the car, which was at that time temporarily in the lawful possession of plaintiff's brother, police officers were notified of the theft, and the defendant company sent out a post card description of the car. On November 26, 1928, the car was recovered at Houma, La. The car was returned to Milwaukee by the defendant company and reconditioned at defendant's expense. In March, 1929, Mr. Barton, adjuster for the defendant company, drove the car from Milwaukee to Oconto. Mr. Barton had some trouble with the car, and evidently it was not operating satisfactorily. He stopped at the office of plaintiff's brother, and plaintiff's brother and Mr. Barton went to the McTavish garage, as did one Clyde Davis, agent for the insurance company. The car was left at the garage that day, as plaintiff's brother wished to have McTavish see the car and find out if it was all right. Upon a check-up McTavish made an estimate of the further sum necessary to put the car in first-class shape. Upon the trial it appeared that this sum would be $196.90.

The policy in its insuring clause contains the following provisions: “The Baltimore American Insurance Company of New York, in consideration of the premium hereinafter mentioned, does insure the assured named herein, for the term herein specified, to an amount not exceeding the actual cash value of the property at the time any loss or damage occurs, nor, in any event, the limits of liability, if any, herein specified, against direct loss or damage from the perils specifically insured against herein to the automobile herein described and the equipment usually attached thereto. * * *”

The policy is so drafted as to be applicable, according to the desires of the insurer and insured, to fire, theft, tornado, collision, or property damage, and the policy in question covered all of these perils, except property damage. In its definition of perils, theft, robbery, and pilferage (broad form) are defined as follows: “Theft, robbery and pilferage, excepting by any person or persons in the assured's household or in the assured's service or employment, whether the theft, robbery or pilferage occurs during the hours of such service or employment or not. * * *”

Under “General Conditions” there are two which are important in this action. The first is as follows: “Limitation of liability and method of determining same. This company's liability for loss or damage to the automobile described herein shall not exceed the actual cash value thereof at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated accordingly, with proper deduction for depreciation however caused, and without compensation for loss of use, and shall in no event exceed the limit of liability, if any, stated in Paragraph C, nor what it would then cost to repair or replace the automobile or parts thereof with other of like kind and quality; such ascertainment or estimate shall be made by the assured and this company, or if they differ, then by appraisal as hereinafter provided.”

The second is as follows: “Abandonment--return of stolen property. It shall be optional with this company to take all or any part of the property at the agreed or appraised value, but there can be no abandonment thereof to this company; and where theft is insured against this company shall have the right to return a stolen automobile or its equipment with compensation for physical damage at any time before actual payment hereunder.”

The case was tried before the court and a jury, and a special verdict submitted to the jury. This verdict contained two questions, as follows:

“First question: What was the reasonable market value of the plaintiff's car, at Oconto, Wisconsin, on or about October 14th, 1928? Answer: $1,090.00.

Second question: What was the reasonable market value of plaintiff's car, at Oconto, Wisconsin, on or about March 14th, 1929? Answer: $300.00.”

Judgment was entered upon the verdict as so rendered, in the sum of $828.81 damages and costs.

Allan V. Classon, of Oconto, for appellant.

Joseph E. Housner and John B. Chase, both of Oconto, for respondent.

WICKHEM, J.

The principal contention of the appellant is that plaintiff is entitled to judgment for not more than $196.90, which sum the undisputed evidence discloses will be adequate to restore the automobile to the same physical condition as when it was stolen, reasonable wear and tear excepted. This contention is based upon the conditions of the policy heretofore set out, it being the appellant's position that the policy expressly reserves to the company the right to return the stolen automobile with compensation...