Oshkosh Gas-Light Co. v. Germania Fire Ins. Co.

• Citation: 37 N.W. 819,71 Wis. 454
• Decision Date: 17 April 1888
• Parties: OSHKOSH GAS-LIGHT CO. ET AL. v. GERMANIA FIRE INS. CO.

71 Wis. 454

37 N.W. 819

OSHKOSH GAS-LIGHT CO. ET AL.

v.GERMANIA FIRE INS. CO.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from Winnebago county court.

February 8, 1885, the defendant issued to the plaintiffs its policy of insurance, whereby it insured the plaintiffs against loss by fire to the amount of $750 in several sums, upon six separate pieces of property, some of which were real estate, and some personal property, including $180 on “the frame storehouse building and shed adjoining, including scales.” By the terms of the policy, “$15,000 concurrent insurance” was “permitted,” in the aggregate, on the whole property covered by the policy. “There was other insurance upon this property, amounting, in the aggregate, to $11,250.” December 18, 1885, a fire occurred, as shown by the evidence and found by the jury, wholly destroying “the frame store-house building and shed adjoining, as well as the scales, and also damaged slightly some of the other property.” The aggregate amount of insurance upon the property so destroyed at the time of the fire was $2,700, in seven different companies, including the defendant company, which carried one-fifteenth of the risk thereon. The nature of the defense will appear from the opinion. On the trial, August 18, 1887, the jury returned a verdict of $220.63. From the judgment entered thereon the defendant brings this appeal.Jenkins, Winkler & Smith, for appellant.

Finch & Barber, for respondents.

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

1. Upon the verdict of the jury it must be assumed that the building mentioned was wholly destroyed by the fire. At the time of such destruction it was insured in seven different companies, in the aggregate $2,700, one-fifteenth of which was in the defendant company. The evidence tended to show that the value of the building at the time of the fire was about $1,200. The defendant concedes that, if it is liable at all, it should pay its proportionate share of the true value of the building, but insists that it is not bound to pay the amount specified in the policy. The contract of insurance was made under a statute which declared that “whenever any policy of insurance shall be written to insure any real property, and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of the insurance written in such policy shall be taken conclusively to be the true value of the property when insured, and the true amount of loss and measure of damages when destroyed.” Section 1943, Rev. St. Under this statute it is settled by frequent adjudications that the actual value of such real estate when insured or destroyed, and the consequent actual loss to the insured, is wholly immaterial. Reilly v. Insurance Co., 43 Wis. 449;Thompson v. Insurance Co., 45 Wis. 388;Cayon v. Insurance Co., 68 Wis. 515, 516, 32 N. W. Rep. 540. This is the necessary result of the language of the statute making “the amount of the insurance written in such policy” conclusive between the parties to the contract, not only as to the true value of the property when insured,” but also as to “the true amount of loss and measure of damages when destroyed.” Id. The statute must be regarded as a part of the contract of insurance, and...