Straker v. PHœnix Ins. Co. of Brooklyn, N.Y.

• Decision Date: 16 December 1898
• Citation: 77 N.W. 752,101 Wis. 413
• Parties: STRAKER v. PHŒNIX INS. CO. OF BROOKLYN, N. Y., ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 413

77 N.W. 752

STRAKER

v.PHŒNIX INS. CO. OF BROOKLYN, N. Y., ET AL.

Supreme Court of Wisconsin.

Dec. 16, 1898.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by Joseph Straker against the Phœnix Insurance Company of Brooklyn, N. Y., impleaded with another. From a judgment for plaintiff, defendant insurance company appeals. Reversed.Mylrea, Marchetti & Bird, for appellant.

G. H. Dawson and Humphrey Pierce, for respondent.

CASSODAY, C. J.

This is an action to recover on a policy of insurance against loss by fire issued to the plaintiff by the defendant insurance company July 22, 1896, and to continue until July 22, 1897, wherein and whereby the appellant agreed, in effect, to insure the plaintiff against all loss and damage by fire during that year, to the amount of $1,900, upon the two-story frame building, and additions thereto attached, occupied by the plaintiff as a saloon and dwelling, and situated on the premises described; that the loss, if any, should be payable to the defendant Pabst Brewing Company, mortgagee, as its interest might appear. The policy contained, among other things, the provision that “this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the hazard be increased by any means within the control or knowledge of the insured.” The application for such insurance was in writing, signed by the plaintiff, and attached to the policy, and referred to therein, and, among other things, reads as follows: “Exposures. Give construction, occupancy, and distance of all exposures within 100 feet. Answered: North, none. East, none. South, brick store about 25 feet. West, none.” And it also contained provisions to the effect that the subscriber requested the insurance by the appellant of the property, and thereby covenanted and agreed to and with the appellant that the foregoing answers were true, and that the same constituted a just, full, and true exposition of all the facts and circumstances inquired about touching the property to be insured, or the building containing the same, and that the answers were to be considered as a basis on which the insurance applied for was to be effected, and the same were to be understood as incorporated in, and forming a part of, all the policies then and there written on the property described, or any part thereof, and that such answers or statements were “to be always accepted and construed as forming and constituting a continuing warranty.” It is stipulated as matters of fact, in effect, that in October, 1896, one Bach bought the adjoining lot, and commenced the erection on the north side of the insured building, and distant from it 6 feet at the nearest point, and 14 feet at the furthest point, of a two-story frame nonfireproof building; that the plaintiff lived in the second story of the insured premises, and kept a saloon on the first floor; that he knew all about the several stages of the erection and location of the building, from its commencement; that the new building had been plastered, all but two rooms, in which rooms on the night of October 30, 1896, and while the building was unoccupied and without any known fire, a fire originated from some unknown cause, which spread to the insured property and caused its destruction; that the amount of loss claimed, and not denied, is $1,450 for the building and contents; that the barn did not burn; that the new building increased the rate on the insured property at least 50 per cent.; that when the policy was issued the plaintiff did not know that such adjoining building would be built, and had no control over it; that at the time the policy was issued the plaintiff did not contemplate the construction of the language of the policy now claimed by the appellant, and did not understand that his policy would be affected in any way by reason of the erection of a building on the adjacent lot, over which he had no control, on his failure to give notice of such erection to the appellant. The complaint was in the usual form. The appellant answered, and set up the provisions of the policy and application mentioned, and relied upon them and the facts stated for a defense. At the close of the trial the court directed a verdict in favor of the plaintiff for $1,529.02, and from the judgment entered thereon, with costs, the defendant insurance company brings this appeal.

The policy in suit is the “Wisconsin standard fire insurance policy,” as prescribed by chapter 387, Laws 1895, being subdivisions 43 to 65 of section 1941, Rev. St. 1898. The provisions of those statutes, so far as they affect the question here in controversy, are as follows: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the hazard be increased by any means within the control or knowledge of the insured.” Subdivision 46. “If an application, survey, plan or description of property be referred to in this policy it shall be a part of this contract and a warranty by the insured.” Subdivision 50. “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto.” Subdivision 62. “All fire insurance corporations * * * shall, upon the issue * * * of any policy, attach to such policy or endorse thereon a true copy of any application or representations of the assured which, by the terms of such policy, are made a part thereof or of the contract of insurance or referred to therein, or which may in any manner affect the validity of such policy.” Rev. St. 1898, § 1945a. Under these statutes, as well as the express wording of the policy, and the application therefor signed by the plaintiff and attached to the policy, there would seem to be no escape from the binding force of the agreement therein contained, to the effect that the policy should be void, “if the hazard be increased by any means within the control or knowledge of the assured,” and that such agreement should be “construed as forming and constituting a continuing warranty,” and “be a part of the contract and a warranty by the insured.” Subdivision...