McFetridge v. Phx. Ins. Co. of Brooklyn, N.Y.

• Decision Date: 31 January 1893
• Parties: MCFETRIDGE v. PHOENIX INS. CO. OF BROOKLYN, N. Y.
• Court: Wisconsin Supreme Court

84 Wis. 200

54 N.W. 326

MCFETRIDGE

v.PHOENIX INS. CO. OF BROOKLYN, N. Y.

Supreme Court of Wisconsin.

Jan. 31, 1893.

Appeal from circuit court, Columbia county; Robert G. Siebecker, Judge.

Action by W. F. McFetridge against the Phoenix Insurance Company of Brooklyn, N. Y., on a fire insurance policy. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

This action was commenced October 9, 1891, upon a policy of insurance on an ice house described, executed by the defendant April 24, 1890, and indemnifying the plaintiff to the amount of $1,500 against loss or damage by fire at any time from April 24, 1890, to April 24, 1891. January 1, 1890, the property was destroyed by fire. The complaint is in the usual form in such cases. The defendant, by way of answer, alleged the breaches of the conditions contained in the policy, to the effect following, to wit: “(1) If the hazard be changed by occupancy or by the erection or occupation of neighboring buildings, or by any means whatever, within the control of the assured, without the consent of this company indorsed hereon, in every such case this policy shall be void.”“(6) If the interest of the assured in the property be other than an absolute fee-simple title, or if any other person or persons have any interest whatever in the property described, whether it be real estate or personal property, or if the building insured or containing the property insured by this policy stands on leased ground, or if there be a mortgage or other incumbrance thereon, whether inquired about or not, it must be so represented to the company, and so expressed in the written part of this policy; otherwise the policy shall be void.”“(11) Persons sustaining loss or damage by fire shall within six days give notice in writing of said loss to the company, and within thirty days from the date of the fire render a particular and specific account of such loss, signed and sworn to by them, stating the facts as therein indicated, together with the usual certificate of a magistrate, and a verified certificate of a reliable and responsible builder as to the actual cash value of such building.” And among other things the answeralleged, in effect, that neither the defendant nor any of its officers or agents had any knowledge or information of the breaches of the conditions mentioned in the answer, or that Scott and Smith owned any such interest in the premises as they did, until long after the loss occurred. At the close of the trial the jury returned a special verdict, in which all questions were answered by the court except the fourth, as hereinafter stated, to wit: (1) That the defendant issued, and the plaintiff accepted, the policy described in the complaint; (2) for the amount of $1,500; (3) that the property insured was actually destroyed; (4) that the amount of damage sustained by the plaintiff was $1,500 and interest, amounting to $1,590, as found by the jury; (5) that the plaintiff delivered proofs of loss, described as “Exhibit B,” to the defendant, January 31, 1891; (6) that the plaintiff did within six days give notice of his loss in writing to the defendant; (7) that the plaintiff did not procure the certificate of a reliable and responsible builder, in detail, as to the cash value of the building immediately before said fire, and attach the same to the proofs of loss; (8) that the plaintiff's interest in the property insured was not that of an absolute owner in fee simple; (9) that the plaintiff was not...