Wohlt v. Farmers' Home Hail, Tornado & Cyclone Ins. Co. of Seymour

• Decision Date: 10 November 1931
• Citation: 206 Wis. 35,238 N.W. 809
• Court: Wisconsin Supreme Court
• Parties: WOHLT v. FARMERS' HOME HAIL, TORNADO & CYCLONE INS. CO. OF SEYMOUR.

206 Wis. 35

238 N.W. 809

WOHLT

v.FARMERS' HOME HAIL, TORNADO & CYCLONE INS. CO. OF SEYMOUR.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the Circuit Court for Waupaca County; Byron B. Park, Circuit Judge.

Action by Walter Wohlt against the Farmers' Home Hail, Tornado & Cyclone Insurance Company of Seymour. From a judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Modified and affirmed.

Action begun September 8, 1930; judgment entered February 20, 1931. Hail insurance. This action was brought to recover the amount of a policy of hail, tornado, and cyclone insurance previously issued by the defendant to the plaintiff. At the close of the evidence, both parties moved for a directed verdict. Thereafter the court made and filed findings of fact and conclusions of law, and upon these judgment was entered in favor of the plaintiff and against the defendant for $2,073.71, from which the defendant appeals.Albert H. Krugmeier, of Appleton (Roger R. Tuttrup, of Appleton, of counsel), for appellant.

Walter P. Melchior, of New London, for respondent.

ROSENBERRY, C. J.

The only question raised upon this appeal is whether or not the plaintiff, Walter Wohlt, has an insurable interest in the buildings destroyed by the cyclone, which occurred on May 1, 1930. On March 13, 1929, the plaintiff, pursuant to an agreement with his brother Harold, conveyed the premises upon which the building stood by warranty deed to Harold; the stated consideration being $1 and other valuable consideration. The court found that the actual consideration was $3,500 in cash and twenty-five acres of land owned by Harold Wohlt, which he agreed to convey to the plaintiff, Walter Wohlt, free and clear of all incumbrances. There was at the time a $400 mortgage on the twenty-five acres. The value of the twenty-five acres was reckoned at $1,500, making the total consideration to the plaintiff $5,000. Contemporaneously with the execution and delivery of the deed to Harold, Harold mortgaged the premises to a third party for $4,000. Out of the proceeds of this mortgage he paid the plaintiff $3,500. The deed and mortgage were recorded. Harold had been in possession prior to the transaction as tenant and remained in possession as purchaser, paying no rent after the date of the deed.

At the time of the execution and delivery of the deed, there was in force a policy of insurance, insuring the plaintiff against loss or damage by tornado and cyclone, in the amount of $2,000. The buildings destroyed were worth a sum exceeding $2,000. At the time of the transaction, it was agreed that the plaintiff should retain possession of the policy of insurance in question until Harold had raised the incumbrance upon the twenty-five acres and conveyed an unincumbered title to the plaintiff. While there was no finding that the brother Harold was insolvent, it was found that all of his property was heavily mortgaged.

The defendant insurance company is a farmers' mutual company, and the policy of insurance contained none of the ordinary and usual forfeiture clauses. Recovery was had for the full amount of the policy, $2,000. The defendant insurance company also contends that the insurable interest of the plaintiff in the buildings could under no circumstance exceed $1,500, and that under the terms of the contract it should not exceed $400, being the amount of the incumbrance on the twenty-five acres of...