Nolan v. Standard Fire Ins. Co.

• Decision Date: 13 April 1943
• Citation: 9 N.W.2d 74,243 Wis. 30
• Parties: NOLAN et al. v. STANDARD FIRE INS. CO.
• Court: Wisconsin Supreme Court

243 Wis. 30

9 N.W.2d 74

NOLAN et al.

v.STANDARD FIRE INS. CO.

Supreme Court of Wisconsin.

April 13, 1943.

Appeal from a judgment of the Circuit Court for Rock County; Jesse Earle, Judge.

Reversed.

Action brought by Louis E. Nolan and another as executors of the will of J. B. Francis, deceased, and J. P. Cullen, as the insured, against the defendant, Standard Fire Insurance Company, to recover, on an insurance policy issued by defendant, loss caused to property of the insured by a windstorm. After a trial on the merits, findings of fact were made by the court upon which it concluded plaintiffs were entitled to recover, and entered judgment accordingly. Defendant appealed.

Nolan, Dougherty, Grubb & Ryan and Crosby H. Summers, all of Janesville, for appellant.

McGowan & Geffs, of Janesville, for respondents.

FRITZ, Justice.

In the policy on which plaintiffs seek to recover for loss sustained by reason of damage caused by a windstorm on August 10, 1941, to a tobacco barn, the provision which plaintiffs claim affords coverage on the barn reads: “$200 on shingle roof tobacco barn at 1524 Beloit Ave.” They owned, as cotenants, 46 acres of farm land at the outskirts of Janesville. On the north 11 acres there was a dwelling numbered 1416 Beloit Avenue, together with some farm buildings. On the adjacent 35 acres to the south there was a dwelling numbered 1602 Beloit Avenue, with another set of farm buildings, including two tobacco barns. The policy in suit was written by defendant's agent, Floyd Yeomans, at the request of the cotenant, J. B. Francis (now deceased), in renewal of a policy on the dwelling at 1416 Beloit Avenue and the accompanying farm buildings. Yeomans testified,-subject to plaintiffs' objection to his competency in view of sec. 325.16, Stats., and the death of Francis,-to the following effect. Francis told him there was no wind insurance on the barns on the south farm, and to look them over and see what should be done about them. On this farm Yeomans found a dwelling with a small barn, and one tobacco barn north and another south of the dwelling. The south barn was newer, in better condition and completely enclosed, but the north barn was older, not enclosed entirely, and the wide doors were off their tracks. Upon returning Yeomans told Francis that the most southerly tobacco barn could be insured but that he did not care to write wind insurance on the north tobacco barn and the small barn because they were not worthy of insurance. Francis then told him to insure the south tobacco barn for $200 and to let the rest of the buildings on the south farm go without insurance. Yeomans testified that while making his inspection at the south farm he saw no numbers on the tobacco barns, and took no note of the street number of the dwelling thereon, which was covered by another policy issued by his predecessor in business, who used the number “1524 Beloit Ave.” in describing the premises. Upon Yeomans' return to his office to write the policy in suit, he took the description “1524 Beloit Ave.” from that policy and assumed that to be the correct number to use in describing the south tobacco barn in the new policy, in which, to describe the dwelling and buildings on the north farm, he took the numbers 1416 and 1418 used by his predecessor in the expiring policy. By other evidence, which was undisputed and clearly competent, the following facts were also established. Until Francis in 1939 turned the policy in suit over to his cotenant, Cullen, he had no knowledge thereof or of the circumstances surrounding its issuance; and did not know which of the two tobacco barns was insured thereby. On March 29, 1940, a windstorm blew the south tobacco barn about ten inches off its foundation, and a few panes of glass were broken in the dwelling on the south farm; and Cullen inspected the damage and notified Yeomans of a claim under the policy for the damage to that barn. Upon Yeomans reporting the claim to defendant, an adjuster was sent to that farm and found that the south tobacco barn was damaged. He found no street numbers on either of the tobacco barns, but did find the number 1602 on the dwelling. Upon meeting Cullen at his office, they agreed on $25 as the damage to the tobacco barn; and when Cullen then told the adjuster that a few window lights of the dwelling were broken, they also agreed on $4.50 for that damage without the adjuster disputing or investigating that loss. The proof of loss mailed to Cullen and executed and returned by him shows that the window damage claim was on the dwelling at 1416 Beloit Avenue; and the loss paid was $25 for the damage by the windstorm on March 29, 1940, to the south tobacco barn, described in the proof of loss as at 1524 Beloit Avenue, and $4.50 for broken glass in the dwelling at 1416 Beloit Avenue. When another windstorm, on August 10, 1941, destroyed the north tobacco barn, Cullen's office informed Yeomans, and when it was reported to him by an adjuster, who investigated this damage, that it was the north tobacco barn which was then blown down, defendant refused to pay plaintiffs' claim on the ground that it had not insured that barn.

If Yeomans was competent to testify in this action, and his testimony to the above effect was admissible, the trial court was clearly in error in finding and concluding that the north tobacco barn, which was destroyed on August 10, 1941, was within the intended coverage of the policy in suit; and that plaintiffs were entitled to recover $170.50 damages, as the balance of the amount of $200, specified in the policy, after deducting therefrom $29.50, paid by defendant to plaintiffs for the damage caused by the storm on March 29, 1940, and which the court found “the defendant through mistake paid to the plaintiffs * * * on property not covered by the said...