Kludt v. German Mut. Fire Ins. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: KERWIN
• Citation: Kludt v. German Mut. Fire Ins. Co., 152 Wis. 637, 140 N. W. 321 (Wis. 1913)
• Decision Date: 11 March 1913
• Parties: KLUDT v. GERMAN MUT. FIRE INS. CO., AUBURN, FOND DU LAC COUNTY.

152 Wis. 637

140 N.W. 321

KLUDT

v.GERMAN MUT. FIRE INS. CO., AUBURN, FOND DU LAC COUNTY.

Supreme Court of Wisconsin.

March 11, 1913.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Fredericke Kludt, John Kludt's administratrix, against the German Mutual Fire Insurance Company, Auburn, Fond du Lac County. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought to recover upon an insurance policy. The case was tried upon an agreed statement of facts, which is substantially as follows: That for several years prior to May 17, 1911, John Kludt, plaintiff's intestate, was a resident of the town of Scott, Sheboygan county, Wis. That the defendant is a mutual fire insurance company belonging to the class known as “Town Mutual Insurance Companies,” and was duly organized as such and engaged in the business of fire insurance within the town of Scott. That said John Kludt, at the time of the making of the purported contract of insurance in question and up to the time of the fire, resided with his wife and family upon certain real estate situated in the town of Scott, Sheboygan county, Wis., being in section 29, township 13 N., range No. 20 E., containing 80 acres. That there was located on the property a frame dwelling house owned by Fredericke Kludt, then wife of John Kludt. That said dwelling house was occupied by John Kludt as and for a dwelling house, such occupation being by and with the consent of his then wife, Fredericke, and that said John Kludt at all times was in possession and enjoyment of the insured property in question located in such dwelling house; and the possession and enjoyment was at all times by and with the consent of the owner, Fredericke Kludt. That at all times from November 30, 1907, until after the fire, May 17, 1911, the real estate in question and other property was the sole property of the then wife of John Kludt, and that John Kludt, otherwise than as stated, had no legal, enforceable right, title, or interest in the property, or to the use of the same, against his wife. That no oral or written agreement existed between John Kludt and his wife regarding the character or extent of said use, and he occupied the same merely as her husband, rent free, by her acquiescence. That John Kludt owned no property, and with the consent of his wife was in possession, use, and enjoyment of said real estate, and conducted thereon the business of farming, and was permitted to exercise the entire management and control over the property, and that all the proceeds of said farm were consumed for operating expenses, improvements, and for the support of himself, wife, and family. That prior to November 30, 1907, John Kludt was named as joint owner with his wife in a deed of said farm, he having furnished about $250 of the original purchase price of $2,450, and on the last-named date, through a third party, sold, released, and conveyed to his wife, who has since owned the same, all his right and title to all of said property, real and personal, and at the time of said transfer he was a member of and policy holder in defendant company. That one of the by-laws of said company is to the effect that a member selling or exchanging his property insured dissolves his connection with the company and loses all his rights in the company. That defendant had no knowledge of the transfer, above mentioned, until after the fire, and did not know that Fredericke Kludt was the owner of the property insured. That on the 30th day of June, 1908, the defendant, for consideration, duly executed and delivered its policy of insurance, bearing number 5573, whereby it insured John Kludt for the term of five years against all loss or damage by fire, except for certain causes excepted, to the amount of $935, being $700 on the dwelling house and the balance on personal property. That policy No. 5573 was a new policy, issued at the expiration of a policy of like character issued by defendant to John Kludt at some time prior to the 30th day of November, 1907, and when John Kludt was joint owner with his wife of the property. That at the time of taking out the policy No. 5573 the defendant did not know of the change in ownership of the property insured, and that John Kludt did not state who was the owner, nor was he asked, and the company's agent made no inquiry as to ownership, but relied upon the ownership being unchanged. That on May 17, 1911, the property was destroyed by fire, which fire did not happen through any of the causes excepted in the policy. That the cause of the fire is unknown, but said John Kludt died by his own hand at the time of the fire. That the value of the property destroyed was equal to or in excess of the sums mentioned in the policy. That due notice was given of the fire and loss in accordance with the rules of the policy. That payment of said loss was refused, solely upon the ground that John Kludt was not the owner, and because such fact was concealed from the company until after the loss occurred. That the defendant promptly tendered the return of all sums received under the application and policy No. 5573, and kept said tender good. That, except as stated, John Kludt performed all conditions under the policy by him to be performed. That on May 17, 1911, John Kludt died intestate, and letters of administration were granted to plaintiff, who qualified as administratrix. That a copy of the policy is annexed to and made a part of the stipulation. The following is paragraph 13 thereof: “13. Any member may leave the company but must pay all his dues first, and beside notify the secretary. Whoever sells or exchanges his property, leaves the company by this act and loses all rights, the same as those who are expelled by the directors. If wished, the policy may be transferred to the successor.” Also a copy of the application for policy No. 5573 is attached to and made a part of the stipulation. The truth of the facts and correctness of both Exhibits A and B are admitted.

The court below made the stipulation a part of the findings, and also found that the plaintiff's intestate did not misstate or fraudulently conceal any facts material to the risk upon the issuance of the policy, and concluded that the plaintiff recover the value of the property described, as specified in the stipulation, to the full amount, with costs.

Judgment was entered accordingly, from which this appeal was taken.

Ecke & Hughes, of Fond du Lac, for appellant.

Franklin W. Bucklin, of West Bend, for respondent.

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

[1] The main question on this appeal is whether John Kludt, the plaintiff's intestate, had an insurable interest in the property covered by the policy in suit. A very able argument is made by counsel for appellant to the effect that he had not, and many cases from other jurisdictions are cited in support of the contention. The following authorities are cited by counsel for appellant, and, in a measure at least, support their contention: German A. Ins. Co. v. Paul, 2 Ind. T. 625, 53 S. W. 442;Bassett v. Insurance Co., 85 Neb. 85, 122 N. W. 703, 19 Ann. Cas. 252;Clark v. Dwelling H. Ins. Co., 81 Me. 373, 17 Atl. 303;Planters' Mut. Ins. Co. v. Loyd, 71 Ark. 292, 75 S. W. 725;Traders' Ins. Co. v. Newman, 120 Ind. 554, 22 N. E. 428;Agricultural Ins. Co. v. Montague, 38 Mich. 548, 31 Am. Rep. 326;Tyree v. Virginia F. & M. Ins. Co., 55 W. Va. 63, 46 S. E. 706, 66 L. R. A. 657, 104 Am. St. Rep. 983, 2 Ann. Cas. 30;Trott v. Woolwich Mut. F. Ins. Co., 83 Me. 362, 22 Atl. 245;Glaze v. Three R. F. M. Ins. Co., 87 Mich. 349, 49 N. W. 595;Fox v. Queen Ins. Co., 124 Ga. 948, 53 S. E. 271;Scott v. Dixie F. Ins. Co., 70 W. Va. 533, 74 S. E. 659, 40 L. R. A. (N. S.) 152;Pelican Ins. Co. v. Smith, 92 Ala. 428, 9 South. 327;Eminence Mut. Ins. Co. v. Jesse, 1 Metc. (Ky.) 523; Ostrander on Fire Insurance, p. 212, § 61; 2 Joyce, Insurance, § 1049; 19 Cyc. 598 (11), and cases.

The foregoing cases turn mainly upon the ground that in states where the laws relating to married women give them the absolute ownership in their separate property, and the possession, control, and management of it, the husband has no insurable interest in his wife's property solely by virtue of the marital relation. But it has been held that in states where the law gives the husband an interest or present right of enjoyment in the wife's property during her life he has an insurable interest. Warren v. Springfield F. & M. Ins. Co., 13 Tex. Civ. App. 466, 35 S. W. 810;Georgia H. Ins. Co. v. Brady (Tex. Civ. App.) 41 S. W. 513;Continental F. Ins. Ass'n v. Wingfield, 32 Tex. Civ. App. 194, 73 S. W. 847;Doyle v. American F. Ins. Co., 181 Mass. 139, 63 N. E. 394;Harris v. York M. Ins. Co., 50 Pa. 341;Trade Ins. Co. v. Barracliff, 45 N. J. Law, 543, 46 Am. Rep. 792;Mutual F. Ins. Co. v. Deale, 18 Md. 26, 79 Am. Dec. 673;Franklin Ins. Co. v. Drake, 2 B. Mon. (Ky.) 50;Leathers v. Farmers' Mut. F. Ins. Co., 24 N. H. 259;Webster v. Dwelling H. Ins. Co., 53 Ohio St. 558, 42 N. E. 546, 30 L. R. A. 719, 53 Am. St. Rep. 658.

There are also cases holding that, where the husband was the equitable owner and the wife a nominal holder of the title, or where the husband insured as the agent of the wife, the policies were held valid. In view of the condition of the authorities elsewhere, were the question new here, we should regard it troublesome. The case at bar, however, seems to be ruled by Horsch v. Dwelling H. Ins. Co., 77 Wis. 4, 45 N. W. 945, 8 L. R. A. 806. In that case the contention was that the plaintiff had no insurable interest in the property. The facts were quite similar in that case to the facts in the case at bar, except that in the former the husband bought the property, paid for it with his own money, and took the title in the name of his wife, and there was an understanding between him...