Karow v. Cont'l Ins. Co. of N.Y.

• Decision Date: 20 February 1883
• Citation: 15 N.W. 27,57 Wis. 56
• Parties: KAROW AND OTHERS v. CONTINENTAL INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

57 Wis. 56

15 N.W. 27

KAROW AND OTHERS

v.CONTINENTAL INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

Filed February 20, 1883.

Appeal from circuit court of Winnebago county.

The plaintiffs are the daughters, only heirs at law, and legal representatives of John Wiskow, who is claimed to have died January 12, 1881. This action is upon two fire-insurance policies issued by the defendant to him in his life time, upon the buildings constituting his homestead, for the sum of $1,150 It is claimed, and for the purposes of this case we must regard the facts as established, that at about half-past 6 o'clock in the evening of January 12, 1881, the assured, John Wiskow, struck and severely injured one of the plaintiffs, then killed his wife, and then set fire to the buildings above mentioned, and then either killed himself or allowed himself to perish in the flames of one of the burning buildings. At the close of the trial, under the charge of the court, the jury returned a special verdict to the effect that John Wiskow was dead; that he set fire to the buildings, and was not insane when he did it. The plaintiffs moved for judgment on the ground that the defendant had waived the defense of the buildings being burned by Wiskow, but the motion was denied and the plaintiffs excepted. Judgment was thereupon entered upon the special verdict in favor of the defendant, from which this appeal is brought.G. W. Burnell, for appellants, Wilhelmina Karow and others.

C. W. Felker for respondent, Continental Ins. Co. of New York.

CASSODAY, J.

Assuming that the defendant called for proofs of loss, yet we do not think such call was made with such knowledge of the facts as to waive the defense alleged that the assured burned his own buildings. In submitting the question of insanity, the court, in effect, charged the jury that they must look outside of the commission of the act of which the assured was charged, and could only find him insane from other and independent testimony in no way connected or associated with the crime. Assuming that the plaintiffs had the right to have the question of insanity submitted to the jury, then the mental condition of Wiskow at the time of the burning was the material subject of inquiry. Certainly his acts, being of the character indicated, tended to show what his mental condition was at that time. It is undoubtedly the law that where the only evidence tending to prove insanity is the commission of a given crime, such act of itself is not sufficient to establish insanity. The mere fact that a man commits suicide does not even raise a presumption of insanity at the time. It is, however, a fact which, in connection with other evidence, becomes very pertinent to the issue. Especially is this so where the suicide is immediately preceded by the murder or attempted murder of members of the suicide's family, and the destruction of his property without any apparent motive or even provocation. The rule is elementary, and must exist from the very nature of the question to be determined.

The learned counsel for the defendant virtually concedes the rule. For this manifiest error in the charge, therefore, the case must be reversed, unless the determination of the question of insanity was immaterial, as urged by counsel for the defendant. He claims that the burning of the building by the assured relieved the company from all liability, regardless of the question whether he was at the time sane or insane, and such seems to have been the opinion of the court during a portion of the trial. The question is important, and the principal one discussed upon the argument. Counsel on both sides concede their inability to find any adjudicated case directly in point. Upon the part of the plaintiffs it is urged that the case is the same in principle as the liability of a life insurance company, where the assured has committed suicide; and he cites several cases which hold, in effect, that if the assured was insane at the time of the suicide, then the company is liable, otherwise not. On the other hand, it is claimed upon the part of the defense that those cases have no application to fire insurance; that the two classes of contracts are essentially different; that a policy of fire insurance is a contract of indemnity,--a contract for compensation for damages actually sustained; whereas, a policy of life-insurance is a contract to pay a certain sum of money upon the death of a person named, which is sure to happen, and that such payment is to be made, regardless of the value or worthlessness of the life insured.

Having thus distinguished the two classes of cases, the learned counsel contends that, while an insane person cannot be guilty of a crime, nor liable for a tort wherein the intent is a necessary ingredient, yet that a lunatic has always been held liable for other torts resulting in damage. In support of this, counsel cite several cases, and argues from them that if a lunatic burns the buildings of A., he is liable to A. for the amount of the actual damages sustained; and that, since this is so, it must follow that a lunatic cannot burn his own buildings upon which he has previously obtained an insurance, and then turn around and recover of the insurer the damages he has sustained by reason of his own act.

The argument is plausible, and deserves very careful consideration, especially in the absence of any direct authority upon the question involved. In order to appreciate its force, it may be well to consider the precise ground upon which such liability is predicated. Krom v. Schoonmaker, 3 Barb. 657, was an action for false imprisonment on void process issued by the defendant when a lunatic, and Judge HARRIS stated the rule thus: “He (a lunatic) is not a free agent, capable of intelligent, voluntary actions, and therefore is incapable of a guilty intent, which is the very essence of crime; but a civil action, to recover damages for an injury, may be maintained against him, because the intent with which the act is done is not material. * * * Ordinarily, in an action for a personal injury, the amount of damages is, at least to a considerable extent, governed by the motive which influenced the party in committing the act. * * * But in respect to the lunatic, as he has properly no will, it follows that the only proper measure of damages in an action against him for a wrong, is the mere compensation of the party injured.”

In Morse v. Crawford, 17 Vt. 499, the defendant, while insane, killed the plaintiff's ox, and in an action against him therefor the court said: “It is a common principle that a lunatic is liable for any tort which he may commit, though he is not punishable criminally. When one receives an injury from the act of another, this is a trespass, though done by mistake or without design. Consequently, no reason can be assigned why a lunatic should not be held liable.” To the same effect, Behrens v. McKenzie, 23 Iowa, 333. In Beals v. See, 10 Pa. St. 61, Chief Justice GIBSON said: “As an insane man is civilly liable for his torts, he is liable to bear the consequences of his infirmity. as he is liable to bear his misfortunes, on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it.” This was quoted approvingly in Lancaster v. Moore,78 Pa. St. 433, and is substantially the ground of liability, as stated in Cooley, Torts 99, 103. Thus the liability is made in no way dependent upon intent or design to commit the act complained of, but is based upon the theory that the lunatic has no will, hence can form no design nor have any intent. It is solely upon the ground that where a loss must fall upon one of two persons equally innocent, it must be borne by the one who caused it. To relieve the defendant from liability upon the strength of the above authorities, therefore, we must go to the extent of holding that there can be no recovery in such case if the destruction of the property was in consequence of any act of the assured, unmoved and unprompted by any intent or design, and when such assured was, in legal contemplation, without any will of his own, and hence incapable of forming any design or having any intent to destroy. Is such the law of fire insurance? It is conceded that there is no express stipulation in the policy relieving the company from liability in such case. But it is a maxim of the insurance law of all commercial nations that the assured cannot recover for loss produced by his own wrongful act. Thompson v. Hopper, 6 El. & Bl. 191.

This brings us to the question, whether he can recover if he happens to set fire to the building without any intent or design to injure any one. In the absence of fraud or design, there can be no question but that a fire insurance company is not relieved from liability on its policy by reason of loss by fire through the negligence of the assured or his servants. Dobson v. Sotheby, 1 Moody & M. 90; Busk v. The Royal Exchange, 2 Barn. & Ald. 73; Walker v. Maitland, 5 Barn. & Ald. 171; Shaw v. Robberds, 6 Adol. & E. 75; Catlin v. The Springfield, 1 Sumn. 434;Columbian v. Lawrence, 10 Pet. 507;Waters v. The Merchants, 11 Pet. 213;St. Louis v. Glasgow, 8 Mo. 713;Nelson v. Suffolk, 8 Cush. 477;Gates v. The Madison, 5 N. Y. 469;Matthews v. The Howard, 11 N. Y. 14;Huckins v. The People's, 11 Foster, 247;Johnson v. Berkshire, 4 Allen, 388;Mickey v. Ins. Co. 35 Iowa, 174;Cumberland v. Douglass, 58 Pa. St. 423; National v. Webster, 83 Ill. 470;Gove v. The Farmer's, 48 N. H. 41.

In Dobson v. Sotheby, supra, Lord TENTERDEN, C. J., said that “one of the great objects of insuring is security against the negligence of servants and workmen.” In Shaw v. Robberds, supra, Lord DENMAN, C. J., reiterated the same doctrine, and added: “But it is argued that there is a distinction between the negligence of servants or strangers and that of the assured himself. We do not see any ground for such distinction, and are...