Reiner v. Dwelling-House Ins. Co.

• Decision Date: 25 April 1889
• Citation: 42 N.W. 208,74 Wis. 89
• Parties: REINER v. DWELLING-HOUSE INS. CO.
• Court: Wisconsin Supreme Court

74 Wis. 89

42 N.W. 208

REINER

v.DWELLING-HOUSE INS. CO.

Supreme Court of Wisconsin.

April 25, 1889.

Appeal from circuit court, Brown county.

This action is for loss by fire upon a policy of insurance executed January 11, 1887, and insuring the property described for five years from that date in the aggregate sum of $3,600, being upon a dwelling-house and barn, and the property in and about the same. The fire occurred about 1 o'clock on the morning of August 19, 1887, and the amount of the property destroyed is alleged to have been, in the aggregate, $3,906.18, and judgment was demanded for $3,225.66, with interest from the time of the fire. The answer, in effect, charged that the fire and damages were caused by the willful act and procurement of the plaintiff; also several forfeitures under the policy, the failure to make proofs as required, and attempts to defraud and deceive the defendant in pretended proofs furnished, and consequent forfeitures; and that no recovery could be had under the policy. The policy contained the following provisions: “Reference is made to application under policy 150,994, which is a part of this policy.”“In case the interest of the assured in said property is not the sole, absolute, and unincumbered ownership thereof, both at law and in equity, this company shall not be liable to pay to the assured by virtue of this policy any sum exceeding the actual cash value of the interest of the assured at the time of the loss, after deducting from the actual cash value of said property the amount and value of all outstanding rights, interests, and incumbrances thereon.”“By the acceptance of this policy, the assured covenants that the application herefor shall be and form a part hereof, and a warranty by the assured; and the company shall not be bound by any act or statement made to or by any agent, unless inserted in this contract.”“If the property, or any part thereof, shall be sold, conveyed, incumbered by mortgage or otherwise, or any change take place in the title, use, occupation, or possession thereof whatever, or if foreclosure proceedings shall be commenced, or if the interest of the assured in said property, or any part thereof, now is or shall become any other or less than hereon, or if the buildings, or either of them, stand on leased ground, or land of which the assured has not a perfect title, or if this policy shall be assigned without written consent hereon, then, and in every such case, this policy shall be absolutely void.”“Any fraud or attempt to defraud or deceive on the part of the assured, and any misrepresentation in the proofs or examination as to loss or damage, shall forfeit all claims under this policy.”“All persons having a claim under this policy shall forth with give written notice of the loss or damage, and within thirty days furnish proofs thereof, signed and verified by the claimants,” etc.; “and until such proofs, plans, specifications, and certificates shall be furnished, and such examination had, and award made as aforesaid, the claim shall not be due or payable.”“No act or omission of the company, or any act of its officers or agents, shall be deemed, construed, or held to be a waiver of a full and strict compliance with the foregoing provisions of the terms and conditions of this policy, except it be a waiver or extension in express terms and in writing, signed by the president or secretary of the company.”“This policy is accepted upon the foregoing agreements, covenants, and conditions.” On the back of the policy is indorsed: “ELIE MARTIN, Agent, Green Bay, Wisc.” On the back of the policy (Exhibit A) is a partly written and partly printed copy of an application for insurance, filled out by the defendant from the original application, in which appears, in the body thereof, the following question, “(5) Is your property above described [the property specified in the policy] incumbered, by what, and to what amount, and to whom?” and the following answer thereto: “(5) No.” This application also provides: “If applicant is a married woman, her husband must sign application with her.” At the end of said application is the following: “The foregoing is my own statement, and is a correct description of the property to be assured, on which insurance will be predicated. I hereby agree that the above-described property, during the continuance of the policy to be issued on this application, shall be and remain in all respects as above set forth, and that the foregoing shall be deemed and taken to be promissory warranties during the entire life of said policy.” Exhibit T. Policy of insurance issued by defendant to plaintiff pursuant to original application, and dated December 3, 1886, is the policy No. 150,994, mentioned in Exhibit A, and is the first of the two policies issued by defendant to plaintiff, and was surrendered when Exhibit A was issued. Upon the trial the jury returned a special verdict to the effect that the defendant waived the provisions of the policy requiring proofs of loss to be furnished within 30 days; that the plaintiff informed the defendant's soliciting agent, Elie Martin, at or before the time when the policy in question was issued, what mortgages were on the land upon which the insured building stood, and Martin informed the defendant before September 14, 1887, what mortgages were on said land; that the fire was not caused by the willful act, consent, or procurement of the plaintiff; that the plaintiff did not in her proofs of loss, willfully and intentionally, and with intent to deceive or defraud the defendant, represent that she was the owner of any property destroyed by the fire, which did not in fact belong to her, nor that the value or quantity of any property so destroyed or injured by the fire was greater than it actually was in fact; that the dwelling-house was wholly destroyed by fire; that the horses mentioned in the chattel mortgage given to secure the purchase price of the binder were the property of the plaintiff at the time of the fire; that the value of the personal property destroyed by the fire was $1,970.66; that the plaintiff informed the defendant's soliciting agent, (Martin,) at the time he took her application for insurance, of the chattel mortgage for $130 on the horses. Upon the record, files, and special verdict the court thereupon ordered judgment in favor of the plaintiff, and against the defendant, for $3,144.21, with interest from December 15, 1887, and judgment was thereupon entered accordingly for $3,272.59. From that judgment the defendant brings this appeal.Vroman & Sale, for appellant.

John H. Brennan, M. T. Parker, and George G. Greene, for respondent.

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

It appears from the undisputed evidence, November 20, 1886, the defendant's local soliciting agent, residing at Green Bay, (Elie Martin,) called at the plaintiff's residence, and solicited insurance on her farm buildings and personal property; that such insurance was then and there agreed upon; that the plaintiff and her husband then and there signed the application therefor mentioned above, and the same was thereupon forwarded to the defendant's home office; that December 3, 1886, a policy, (No. 150,994,) running for five years, was issued to the plaintiff; that such policy was precisely like the one of which the substance is set forth above, except as to the dates, amount, and some new items; that a copy of such application was printed and written on the back of that policy; that the plaintiff held that policy until December 27, 1886, when she requested such soliciting agent to increase the amount of insurance upon the house and barn and sundry articles of personal property in the aggregate amount of $1,000, which was done by sending such policy to said home office, and receiving therefrom, in lieu thereof, another policy, the material portions of which are given above; and that the same was issued January 11, 1887, upon such former application. At the time of such application for such increase there were two mortgages upon the...