Stache v. The St. Paul Fire & Marine Insurance Company

• Decision Date: 30 March 1880
• Citation: Stache v. The St. Paul Fire & Marine Insurance Company, 5 N.W. 36, 49 Wis. 89 (Wis. 1880)
• Parties: STACHE and others v. THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY
• Court: Wisconsin Supreme Court

5 N.W. 36

49 Wis. 89

STACHE and others v. THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY

Supreme Court of Wisconsin

March 30, 1880

Argued March 13, 1880

APPEAL from the Circuit Court for Brown County.

The case is thus stated by Mr. Justice TAYLOR:

"This was an action upon a policy of insurance against loss by fire.The property insured was described in the policy as follows: '$ 800 on his two-story building, occupied as an hotel; $ 260 on household furniture and wearing apparel; $ 75 on his provisions and stock of liquors and cigars; $ 65 on his bar fixtures and furniture, counter, stoves and lamps; $ 130 on his frame barn; $ 20 on hay therein.'

"After the policy was issued, an additional insurance was granted for $ 400 upon an addition built to the house.The policy provided that in case of loss the insurance money should be payable to Duchateau & Bros., as their interest might appear.The policy was first issued October 2, 1875, and renewed for one year October 2, 1876.The additional insurance for $ 400 was granted June 11, 1877, and the loss occurred June 13 1877.The property above described as insured by said policy is alleged in the complaint to have been also described in said policy as situated in the town of Red River, section 18 range 23, Kewaunee county, Wisconsin.The answer admits the making of the policy as alleged in the complaint; and, as the policy is not made a part of the bill of exceptions, there is no evidence that any more particular description of the locality of the insured property was contained therein.

"The defense to the action was: first, that the insured had, in his application for insurance, falsely stated that his title to the lands upon which the house and barn were situated was a title in fee, when the fact was that he held the possession of the lands by a lease for ten years; and second, 'that in making out his proofs of loss the plaintiff Stache falsely and fraudulently represented and alleged, with intent to mislead the defendant and induce it to pay the loss, that the property insured was at the time of said fire mentioned in the complaint still owned by him in fee simple, and such false statement was, on the 23d day of June, 1877, sworn to by the said Stache and delivered to the defendant thus sworn to.'

"The evidence shows that after the fire the adjuster of losses for the defendant company came on for the purpose of investigating and adjusting the loss, visited the location of the insured property for the purpose of ascertaining the extent and fairness of the loss, and then returned to Green Bay, where he adjusted the loss with the plaintiffs.On his return to Green Bay after visiting the locality of the insured property, he stated to the local agent of the company that he thought it was a fraud; but notwithstanding this he then made an agreement with the plaintiffs that the loss should be adjusted at $ 1,306.92, to be paid in sixty days and although the plaintiffs claimed the loss to be greater, they agreed to take that sum in full and surrender the policy on payment of the same.At the same time proofs of loss were made out and sworn to by the plaintiff Stache.

"The evidence further shows, and the jury find, that the plaintiff Stache erected all the buildings insured after he went into possession under his lease.The evidence also shows, and the jury find, that the Duchateaus' interest in the insured property was two chattel mortgages: one dated July 15, 1875, to secure the payment of $ 338, with interest at ten per cent., and one dated February 27, 1875, to secure $ 400, with interest at ten per cent.The first of said mortgages was upon the household furniture and fixtures, and the second upon the insured house and barn, and they are described as situate on lot 1, sec. 18, town 25, range 23.The mortgages were duly filed in the office of the proper town clerk, and had been renewed February 27, 1877."

The jury returned a special verdict, the material parts of which are stated in the opinion.Both parties moved for judgment on the verdict; and the court ordered judgment in favor of the defendant.A subsequent motion by the plaintiffs, based on the judge's minutes, for a new trial, was denied; and plaintiffs appealed from the judgment in defendant's favor.

Judgment reversed and cause remanded.

The cause was submitted on the brief of J. C. & A. C. Neville for the appellants, and that of Hastings & Greene for the respondent.

OPINION

DAVID TAYLOR, J.

In the state of the case shown by the foregoing statement, it may be a question of some doubt whether either party can go behind the special verdict and allege errors arising upon exceptions taken on the trial, or look into the bill of exceptions for the purpose of ascertaining whether the findings are sustained by the evidence; but as we are of the opinion that the learned circuit judge erred in ordering judgment for the defendant upon the facts found by the special verdict, it will not be necessary to determine that question.

We have stated some of the evidence given on the trial, for the purpose of more fully understanding the scope and meaning of some of the most material facts stated in the special verdict, and not with the intention of reviewing any of the findings of the jury.The only findings which are necessary to be considered for the purpose of determining in whose favor judgment should be rendered, and as to the effect of which there is any dispute, are the following:

"6.That said application, in addition to other statements as to the location and description of the premises to be insured, in answer to the question, 'If the survey for insurance is on building, state if the same is situated on ground held by you in fee simple, or on a lease; if on a lease, when will the lease expire?' stated 'Fee simple;' and said application further stated that the applicant's title to the property to be insured was absolute.A.We, the jury, so find.

"7.That said application also contained this clause: 'And the said applicant hereby covenants and agrees to and with the said company that the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant and are material to the risk; and said answers are considered the basis on which insurance is to be effected, and the same is understood as incorporated in and forming a part and parcel of the policy;' which said clause was at the end of said application and after said statement mentioned in finding six hereof.A.We, the jury, so find.

"11.That in and by said proofs, sworn to by the plaintiffStache, in answer to the question, 'If real estate, whether it is owned in fee simple or held on lease?' the said Stache stated that the property belonged to deponent, owned in fee simple.A.We, the jury, so find.

"12.That at the time said application was made and policy issued, the only interest that the plaintiff had in the land on which the buildings insured were located, was under a lease from one Antoine Recard, for a period of ten years from May 19, 1874.A.We, the jury, so find.

"16.That at the time said proofs of loss were made, the adjuster said that, at the expiration of sixty days from such time, the amount of the loss, $ 1,306.92, would be paid through the local agent on the surrender of the policy, and the plaintiffA. C. Duchateau said, 'All right; that is satisfactory.'A.We, the jury, so find.

"17.That at the time at which said proofs of loss were made, and said statement made by said adjuster, Kibbie, he did not know the condition of the title to the land on which the buildings insured were situated.A.We, the jury, so find.

"18.Was the agreement (if any) to pay in sixty days on surrender of the policy made after the proofs were made out?A.Yes.

"19.Did the plaintiffDuchateau interpret to the plaintiffStache the questions put to him by the adjuster, Kibbie, in making out the proofs of loss?A.Yes.

"20.Did the plaintiffStache and others claim more for their loss than $ 1,306.92?A.Yes.

"21.Did the plaintiffs and defendant, on June 23, 1877, finally agree upon and settle the claim of the plaintiffs for $ 1,306.92?A.Yes.

"22.Did the insurance company promise and agree with the plaintiffs to pay said sum of $ 1,306.92 at the end of sixty days from June 23, 1877?A.Yes.

"23.Did the plaintiffStache, through A. C. Duchateau or Duchateau Bros., at the same time agree that upon payment of said $ 1,306.92 in sixty days they would give up all further claim under the policy and surrender the policy to the insurance company?A.Yes.

"24.If you answer 'Yes' to the above question, was such settlement understood to be a final settlement and compromise of plaintiffs' claim under the policy?A.Yes.

"25.If you find there was a settlement, were the plaintiffsStache or Duchateau guilty of any fraud in making or inducing such settlement?A.No.

"26.Before making out any proofs of loss or settlement, did the defendant's agent, Kibbie, go down to the premises burned?A.Yes.

"27.Did Kibbie write up the proofs of loss himself?A.Yes.

"28.Did said Kibbie, before any settlement was made, have full time to investigate and find out plaintiffStache's title to the land and property destroyed?A.Yes.

"29.Did Kibbie say to Mr. Benson, before any settlement was made, that he thought plaintiffs' claim a fraud?A.No.

"30.Can the plaintiffStache speak, write or understand the English language?A.No."

Upon the facts found, it is settled that, after the loss occurred and after the authorized adjuster of the defendant had investigated the loss, an agreement was entered into by the...