Stanhilber v. Mut. Mill Ins. Co.

• Decision Date: 18 March 1890
• Citation: 76 Wis. 285,45 N.W. 221
• Parties: STANHILBER ET AL. v. MUTUAL MILL INS. CO.
• Court: Wisconsin Supreme Court

76 Wis. 285

45 N.W. 221

STANHILBER ET AL.

v.MUTUAL MILL INS. CO.

Supreme Court of Wisconsin.

March 18, 1890.

Appeal from circuit court, Winnebago county.

This is an action upon a policy of insurance issued by the defendant company, for value received, to the firm of Stanhilber, Amos & Co., September 23, 1885, insuring the property therein described, against loss or damage by fire or lightning, in the sum of $2,500, from September 22, 1885, to October 1, 1890. Upon the joining of issue, and waiving of a jury, and trial had, the court found as matters of fact, in effect, as stated, and also that June 4, 1886, a fire occurred, by which the property so insured, or a part thereof, was destroyed and damaged to the amount of $17,523.05. That said firm thereupon gave to the defendant immediate notice in writing of such loss, and within 30 days after said fire duly rendered to the defendant a particular statement or proof of said loss, as required by the policy, and that the plaintiff had duly performed and fulfilled all the conditions of said policy on their part. That said proofs of loss were duly received by the defendant within 30 days after said fire. That the defendant had not paid said loss, or any part thereof, but is now justly indebted to the plaintiffs therefor, upon said policy, in the sum of $2,132.80. That the value of the insured property at the time of said loss was $33,503.28. That the loss or damage was $17,523.08. That the total insurance thereon at that time was $25,000. That the members of said firm, not parties to this action, had assigned their interest therein to the plaintiffs, January 31, 1887. That the defendant was, at the several times mentioned, and is, a corporation duly organized and existing under the laws of the state of Illinois. That the assured, at the time of said loss, held a policy for $1,000 in the Orient Insurance Company, containing the following clause: “It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall maintain insurance on the property hereby insured by this policy to the extent of four-fifths of the actual cash value thereof, and, failing so to do, the assured shall be a coinsurer to the extent of such deficit, and in that event shall bear his, her, or their proportion of any loss. It is, however, mutually understood and agreed that in case the total insurance shall exceed four-fifths of the whole actual cash value of the property insured by this policy, the assured shall not recover from this company more than its pro rata share of four-fifths of the whole actual cash value of such property.” That said clause is what is known and understood in insurance contracts and among insurance men as the “four-fifths clause.” That there is printed on the back of the policy so issued by the defendant to said firm, under the head, “Relating to the method of adjustment of loss, and payment thereof,” the following: “(5) If this policy is made payable, in case of loss, to a third party, or held as collateral security, the proofs of loss shall, nevertheless, be made by the party insured at the time of the fire, but this company shall not, in such case, or under any circumstances whatever, be liable for a greater proportion of any loss upon property described in this policy than the sum hereby insured bears to the whole sum insured thereon, whether such other insurance be by specific or by general or by floating policies, or whether such other insurance be valid or collectible, or not; and it is hereby declared and agreed that in case of the insured holding any other policy in this or any other company on the property insured, subject to the conditions of average, this policy shall be subject to average in like manner.” That at the time of the making of the application for insurance in the defendant company, and at the time of the issuance of said policy, and the making of proofs thereof by the plaintiffs, one Rudolph was the agent of the defendant company, and in and about the effecting of said insurance and the making of said contract acted for and in behalf of the defendant. That while so acting as such agent for the defendant said Rudolph represented to said firm that the policy issued by said company, and to be issued upon said application, did not contain a four-fifths clause. That there was not attached to the policy in suit, nor indorsed thereon, a true copy, or any copy, of any application or representation of the assured, in any manner or in any form whatever; but that the said defendant company neglected to comply with the requirements of section 1945 a, Sanb. & B. Ann. St. Wis. That all the allegations of the complaint, except as therein found, are true. That, save and except as therein found, no allegation of the defendant's answer was true. And as conclusions of law the court found, in effect, that, by the terms of the policy in question, the said firm became co-insurers the same as though such four-fifths clause had been inserted therein, but that said defendant company is estopped from so claiming on account of the representations of its agent Rudolph, as above found; that the defendant is not entitled to any reduction from the amount due the plaintiffs on account of said loss, because of such four-fifths clause contained in the policy of the Orient Insurance Company; that the plaintiffs are entitled to recover in this action from the defendant the sum of $1,752.30, the amount of their loss...