VanKirk v. Citizens' Ins. Co. of Pittsburgh

• Citation: 79 Wis. 627,48 N.W. 798
• Parties: VANKIRK v. CITIZENS' INS. CO. OF PITTSBURGH.
• Decision Date: 05 May 1891
• Court: United States State Supreme Court of Wisconsin

79 Wis. 627

48 N.W. 798

VANKIRK

v.CITIZENS' INS. CO. OF PITTSBURGH.

Supreme Court of Wisconsin.

May 5, 1891.

Appeal from circuit court, Rock county.

This action is on a policy of insurance issued by the defendant company to one Collier, insuring him to the amount of $400 against loss of or damage by fire to his tobacco barn in Janesville. The barn was totally destroyed by fire during the term of the policy. After the loss Collier assigned his interest in the policy and insurance money due thereon to the plaintiff. The complaint alleges due performance by Collier of all conditions precedent stipulated in the policy to be performed by him. The answer sets out numerous conditions and stipulations contained in the policy, but assigns breaches by Collier of but two of them. These are the usual stipulations in insurance policies that no fact material to the risk, or relating to the condition, situation, or occupancy of the insured property, has been concealed; that the interest therein of the assured has been truly stated to the defendant company; and that, if the interest of the assured be other than the entire, unconditional, and sole ownership of the property, it must be so expressed in the policy. The case was tried by the court. The findings of fact (which are fully supported by the testimony) are to the effect that at the time the policy was issued there was a mortgage upon said premises given to secure an overdue and unpaid indebtedness of $1,035; that Collier did not inform the company, or its agent who effected the insurance, of the existence of such mortgage; that he did not know that the mortgage had anything to do with the application for insurance; that he was not asked by the company or its agent as to whether the property was incumbered; that he did not represent that it was unincumbered, and did not fraudulently or intentionally conceal the existence of said mortgage from the company or its said agent; that Collier made no written application for the policy, and no copy of any application or representation of Collier was attached to the policy or indorsed thereon; and that due proofs of loss were either made by the plaintiff, or the same were waived by the company. The evidence shows that, before the time for making proofs of loss expired, the company disclaimed all liability under the policy. As conclusions of law, the court found from the foregoing facts that Collier, at the time the policy was issued, was the owner in fee-simple of the insured building; that the policy was in full force and effect when such building was burned; and that the plaintiff is entitled to judgment for the amount of such insurance. Judgment for plaintiff for the amount due on the policy, by its terms, was thereupon entered. The defendant appeals therefrom.Ed. F. Carpenter, for appellant.

J. W. Bates and Dunwiddie & Goldin, for respondent.

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

On the trial the defendant demurred, ore tenus, to the complaint, alleging that it failed to state a cause of action. The ground of the demurrer was that there is no...