Matthews v. Capital Fire Ins. Co.

• Decision Date: 23 September 1902
• Citation: 115 Wis. 272,91 N.W. 675
• Parties: MATTHEWS v. CAPITAL FIRE INS. CO. ET AL.
• Court: Wisconsin Supreme Court

115 Wis. 272

91 N.W. 675

MATTHEWS

v.CAPITAL FIRE INS. CO. ET AL.

Supreme Court of Wisconsin.

Sept. 23, 1902.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by Charles F. Matthews against the Capital Fire Insurance Company and others. From a judgment for plaintiff, defendant insurance company appeals. Affirmed.

Action upon a fire insurance policy. The insurance contract was in the form of the standard policy required by the laws of this state. It contained this provision:

“This entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership.” The fact was, as shown in the complaint, that such interest was that of a vendee under a land contract. The policy also contained a provision requiring proofs of loss after the happening of a fire, and before the lapse of 60 days thereafter, as a condition precedent to the maturity of any claim on the part of the assured thereunder. Defendant's adjusting agent, after the fire occurred, while acting for his principal in examining into the circumstances of the loss, denied all liability to plaintiff under the policy. There was an assignment of the policy by the assured to E. A. Muck. The assignment was indorsed on the back of the policy. It was absolute in form, but contained recitals to the effect that the assured was the vendee of certain lands upon which the buildings and property covered by the policy were located; that there was due to the vendor under such contract the sum of $800; that E. A. Muck was the assured's guarantor for the payment thereof; that the contract required the vendee to carry $700 of insurance on the buildings for the benefit of the parties thereto as their interest might appear; and that in consideration of $800 paid to the assignor by Muck the assignment was made. Defendant's agent indorsed upon the policy the customary consent of the company to the assignment, with knowledge of the facts. Evidence was permitted, under objection, showing that the purpose of the assignment was to secure Muck against any loss happening to him by reason of the guaranty.

At the close of the evidence it was agreed by the attorneys for the respective parties that there was but one controverted question of fact, that being whether defendant's agent, who indorsed its consent to the assignment of the policy to Muck, knew the purpose of such assignment and gave such consent notwithstanding. They further agreed to the submission of such question, only, to the jury. The decision thereof was in plaintiff's favor. All other questions being decided in his favor, judgment was rendered for him for $678.80 damages and costs.W. P. Crawford and Brown & Kerr, for appellant.

George C. Cooper and George L. Spangler, for respondent.

MARSHALL, J. (after stating the facts).

The assignments of error raise three questions which will be considered in their order.

1. Is the interest of a vendee of realty under a land contract “sole and unconditional ownership” within the meaning of that provision of the standard policy requiring such ownership as a condition precedent to the validity of an insurance contract made in accordance therewith? This court held contrary to appellant's position on that point in Davis v. Furniture Co., 102 Wis. 394, 78 N. W. 596. That decision is in harmony with holdings of this court made prior to the enactment of the standard policy law. The authorities elsewhere are uniform to the same effect. The idea is that equitable ownership is, properly speaking, entire and sole ownership as regards the real purpose of the provision commonly used in insurance contracts on that subject. It does not seem that we are called upon to reconsider or discuss a matter so well settled as the law on the subject in question. Insurance Co. v. Crockett, 75 Tenn. 725, 729;Insurance Co. v. Wilgus, 88 Pa. 107, 110; Chandler v. Insurance Co., Id. 223, 227; Lewis v. Insurance Co. (C. C.) 29 Fed. 496, 24 Blatchf. 181;Insurance Co. v. Hughes, 47 C. C. A. 459, 108 Fed. 497;Dupreau v. Insurance Co., 76 Mich. 615, 43 N. W. 585, 5 L. R. A. 671;Loventhal v. Insurance Co., 112 Ala. 108, 20 South. 419, 33 L. R. A. 258, 57 Am. St. Rep. 17;Insurance Co. v. Estes, 106 Tenn. 472, 62 S. W. 149, 52 L. R. A. 915, 82 Am. St. Rep. 892.

2. Did the conduct of appellant's adjusting agent, in denying all liability of his principal under the policy after the loss occurred, waive the provision thereof requiring proofs of loss? It is conceded that were it not for the provision of law in terms precluding the waiving of any condition or provision thereof, other than expressly in a writing indorsed thereon or attached thereto (sections 1941-62, Rev. St. 1898), the acts of the agent would have had that effect. But it is said that in view of disability of the agent being a matter of law, decisions on the subject, as regards insurance contracts not regulated by any legislative enactment in regard to the matter, do not apply, and that the effect of the standard policy statute was overlooked in Faust v. Insurance Co., 91 Wis. 158, 64 N. W. 883, 30 L. R. A. 783, 51 Am. St. Rep. 876, where the precise question here presented was decided adverse to counsel's contention, though the effect of the law was fully recognized in Bourgeois...