Wilcox v. Cont'l Ins. Co. of N.Y.

• Decision Date: 02 May 1893
• Citation: 55 N.W. 188,85 Wis. 193
• Parties: WILCOX v. CONTINENTAL INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

85 Wis. 193

55 N.W. 188

WILCOX

v.CONTINENTAL INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

May 2, 1893.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Henry Wilcox against the Continental Insurance Company of New York to recover on a policy of insurance issued by defendant to plaintiff. There was judgment for defendant on a demurrer to the complaint, and plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

The complaint alleges, in effect, the incorporation and location of the defendant. That May 20, 1892, the plaintiff was the owner of a stallion of the value of $1,000, subject to a chattel mortgage thereon to one Connors for $75, and then insured in the Mutual Reserve Live-Stock Insurance Company of Marshall, Mich., for the sum of $200. That on said day the plaintiff applied to the defendant for an insurance policy against loss by fire upon said horse, which the defendant then and there examined, and agreed to issue such policy for the sum of $200 as soon as the location of said horse for the summer should be fixed by the plaintiff; that at that time the defendant inspected said horse, but asked no questions of the plaintiff as to the title, or other insurance thereon, and that the plaintiff did not know that such facts were in any way material to the risk, or that the defendant intended that the policy to be issued thereon should contain a provision relative to said matters. That May 27, 1892, the plaintiff, having determined upon a location of said horse for the summer, paid to the defendant four dollars, being the premium for such insurance, and the defendant thereupon agreed to send to the plaintiff such policy to insure said horse for one year from June 3, 1892, in the sum named, and upon said last-named day the defendant did send to the plaintiff such policy. That said policy is attached to the complaint herein, and forms a part thereof, and, among other things, contained this clause: “This entire policy, unless otherwise provided by agreement indorsed thereon, or added thereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy, or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.” That June 21, 1892, and during the life of said policy, said stallion was destroyed by fire, without any fault upon the part of the plaintiff. That the plaintiff duly furnished to the defendant due proofs of said loss, as required by the policy, and did everything required of him by said policy to be done and performed to entitle him to the benefits thereof, but that the defendant, after full inquiry, denied all liability to the plaintiff on account of said loss, for the reason of the existence of said chattel mortgage and said prior insurance. From an order sustaining a demurrer to said complaint for insufficiency, the plaintiff brings this appeal.Bushnell, Rogers & Hall, for appellant.

H. W. Chynoweth, for respondent.

CASSODAY, J., (after stating the facts.)

This is an action at law upon a contract in the form of a policy of insurance. There is no attempt to reform the contract by reason of any mistake or fraud, or otherwise. True, it is alleged, in effect, that in making the contract “the defendant fraudulently suppressed and concealed from this plaintiff the fact that said policy was to and did contain” the provision quoted in the foregoing statement. No facts are alleged, however, indicating such suppression or concealment. The most that can be inferred from the facts alleged is that, in making the contract for the insurance, the defendant's agent did not inform the plaintiff that the policy to be sent would contain such a provision, and that it was sent without any explanation that it did contain such a provision. The policy, which is made a part of the complaint, purports to be the “standard fire insurance policy of...