Struebing v. Am. Ins. Co. of Newark, N. J.

• Decision Date: 08 January 1929
• Citation: 197 Wis. 487,222 N.W. 831
• Parties: STRUEBING v. AMERICAN INS. CO. OF NEWARK, N. J.
• Court: Wisconsin Supreme Court

197 Wis. 487

222 N.W. 831

STRUEBING

v.AMERICAN INS. CO. OF NEWARK, N. J.

Supreme Court of Wisconsin.

Jan. 8, 1929.

Appeal by the defendant from a judgment of the Circuit Court for Fond du Lac County; Hon. Chester A. Fowler, Judge.

Action by C. J. Struebing against the American Insurance Company of Newark, N. J. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.--[By Editorial Staff.]

The principal facts in the case will appear from the findings, as follows:

“1. On November 22, 1922, the defendant issued to plaintiff its policy of insurance against loss by fire in terms as set forth in the complaint.

2. The said policy was of the standard form and contained the certain provisions respecting further insurance and change of interest set forth in the answer. It was never provided by agreement in writing either that plaintiff might have other insurance or make change of interest in the premises.

3. (Not pertinent to the issues on this appeal.)

4. On March 26, 1926, the plaintiff procured another policy of insurance from the Theresa Mutual Fire Ins. Co. covering personal property on the premises covered by defendant's policy. In September following the said mutual company levied an assessment against all its policy holders, including the plaintiff. The by-laws of the said Mutual Company provide that if a policy holder fails for sixty days after receiving notice of an assessment to pay the same he shall ‘forfeit and lose his rights' in the company. The plaintiff was duly notified of the said assessment and the amount payable thereon by him, and failed and neglected for more than sixty days and until after the loss herein involved to pay the same or any part thereof. Shortly after the loss the plaintiff sent the defendant the amount of his said assessment, but the company returned an amount thereof proportional to the amount of its insurance on destroyed property to the amount on property undestroyed. The directors of the company refused to pay any sum to plaintiff on account of said loss, on the ground that plaintiff had no legal claim against the company, but referred the matter of payment for action at the annual meeting of the members of the company which meeting has not yet been held.

5. The local agent of the defendant, who as to farm property insurance was a soliciting agent with power to take applications, submit them to the company and on the company's accepting the risk and sending him its policy, to countersign and deliver it and collect the premium, but with power to issue commercial policies, had full knowledge at the time thereof * * * of the issuance of said policy of the Theresa Company and in fact advised and even solicited that the plaintiff take more insurance on personal property. At the time the defendant's policy was issued plaintiff was not living in the insured premises and had only a small amount of household goods and other personal property thereon. It was then contemplated that plaintiff would later remove to the premises and bring his remaining personal property thereto, and that when he did so he would take further insurance on personal property. He did subsequently move to the premises and brought with him thereon other personal property of the approximate value of $2,500 exclusive of an electric lighting plant which he installed on the premises. All this additional property was on the premises when the said Theresa policy was issued.

6. After the issuance of said Theresa Company's policy lightning entered the plaintiff's building on the wire of its electric light plant and injured the plant. The plaintiff then notified the local agent of the loss and the local agent investigated and reported the facts respecting the injury to the plant to the defendant company and the defendant company refused payment of the loss solely on the ground that its policy did not cover insurance on the electric light plant.

7. On March 4, 1927, the dwelling house covered by defendant's policy was wholly destroyed by fire and personal property then located therein of value in excess of $1,000 was also wholly destroyed. The local agent was informed of said loss and notified the defendant thereof and the defendant's adjuster shortly thereafter visited the premises with view to adjusting the loss. He was then informed * * * of the existence of said Theresa Company's policy of insurance and compared the items covered therein with the items covered by defendant's policy. The said adjuster after ascertaining these facts requested of plaintiff a list and valuation of the personal property destroyed by said fire, which the plaintiff furnished. The adjuster on such visit made an offer to plaintiff of $3,200 in full settlement of the loss which plaintiff refused.

8. During said negotiations with plaintiff the said adjuster procured the plaintiff to sign the ‘non-waiver’ agreement attached hereto and made a part of these findings. No consideration was paid to or received by the plaintiff for his signing thereof. The same was not read to the plaintiff. The plaintiff is not able to read English except the simplest and has not sufficient knowledge and comprehension of the language fully to comprehend the provisions of said nonwaiver.

9. The said adjuster made report to the defendant company and thereafter the defendant notified the plaintiff by letter to appear for examination at time and place stated and expressly based its demand upon a provision of its said policy giving it the right so to do.

10. * * * Had he (plaintiff) been informed by defendant at any time precedent to the loss that the defendant's policy was not deemed by them in force he could and would have procured other insurance. He at no time understood that agreement in writing was provided by the policy as necessary to authorize additional insurance on his personal property. * * *”

Conclusions of Law.

“The plaintiff is entitled to judgment for damages as laid in the complaint.

Let judgment be entered accordingly.”

The case was tried with a jury, but at the conclusion of the evidence both parties moved for a directed verdict. The jury was then discharged, and the court made and filed the foregoing findings of fact and conclusions of law, and directed judgment in plaintiff's favor in accordance with the prayer of his complaint. Upon the entry of such judgment, the defendant prosecuted this appeal.

Crownhart, J., dissenting.

Tenney, Reynolds & Davis, of Madison, for appellant.

T. L. Doyle, of Fond du Lac, for respondent.

DOERFLER, J.

[1] The policy in the defendant company was a Wisconsin standard fire insurance policy, and contained the following provision, to wit: “Unless provided by agreement in writing, added hereto, this company shall not be liable for loss or damage occurring (a) while the insured shall have any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy.”

There was no agreement in writing added to the policy authorizing any other contract of insurance on the property covered in whole or in part by the policy in the defendant company, and the court so found.

The court also found that on March 26, 1926, the plaintiff procured another policy of insurance from the Theresa Company, covering personal property on the premises covered by defendant's policy. This would suspend the liability in the policy of the defendant, unless, pursuant to an agreement in writing added to the policy, the defendant company had authorized another contract of insurance, on the ground that the policy in question was entire and indivisible. Hinman v. Hartford Fire Ins. Co., 36 Wis. 159;Schumitsch v. American Ins. Co., 48 Wis. 26, 3 N. W. 595;Dohlantry v. Blue Mounds Ins. Co., 83 Wis. 181, 53 N. W. 448;Worachek v. New Denmark Mutual Home F. Ins. Co., 102 Wis. 81, 78 N. W. 165;Burr v. German Ins. Co., 84 Wis. 76, 54 N. W. 22, 36 Am. St. Rep. 905;Carey v. German-American Ins. Co., 84 Wis. 80, 54 N. W. 18, 20 L. R. A. 267, 36 Am. St. Rep. 907;Bloomer v. Cicero Mutual Fire Ins. Co., 183 Wis. 407, 198 N. W. 287.

[2]Section 209.06 (2) of the Statutes provides: “(2) No warranty incorporated in a contract of insurance relating to any fact prior to a loss shall defeat or avoid such policy * * * unless such breach existed at the time of the loss.”

Plaintiff's counsel insists: That the section of the statutes above quoted controls this case; that the policy provision above set forth constitutes a warranty under such section; that, inasmuch as the plaintiff at the time of the loss was in default in the payment of the assessment levied by the Theresa Company, which default continued for a period of four months prior to the loss, the policy in the Theresa Company became absolutely void, to the same effect as though no policy whatever had ever been procured in such company. This attitude of plaintiff's counsel also meets with the approval of the trial court in its opinion filed.

In Clement on Insurance, book 2, p. 136, the term “warranty” is defined as follows: “A warranty in an insurance contract is a statement made therein by the insured, which is susceptible of no construction other than that the parties mutually intended that the policy should not be binding unless such statement be literally true.”

The definition of the author above quoted refers expressly to a statement, which must be literally true, to entitle the insured to recover a loss under the policy. Bearing in mind the quoted provision of the policy, which plaintiff's counsel and the trial court denominate a warranty, an examination of the language used does not reveal a statement which must be literally true to entitle the insured to recover. The policy provision above quoted points out what is necessary to authorize other contracts of insurance. It requires an agreement in writing, added to the policy. It further declares that the procuring of another contract of insurance in violation of this policy...