Wolters v. W. Assur. Co.

• Decision Date: 02 February 1897
• Citation: 70 N.W. 62,95 Wis. 265
• Parties: WOLTERS ET AL. v. WESTERN ASSUR. CO.
• Court: Wisconsin Supreme Court

95 Wis. 265

70 N.W. 62

WOLTERS ET AL.

v.WESTERN ASSUR. CO.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from circuit court, Manitowoc county; N. S. Gilson, Judge.

Action by Joseph G. Wolters and another against the Western Assurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

This action was brought upon a policy of fire insurance for $2,000,--$1,500 on a frame building and saloon at Two Rivers, Wis.; $100 on saloon furniture; $100 on wines and liquors; and $300 on household and kitchen furniture, beds, bedding, family stores, etc. One Grotegut was joined as plaintiff, by reason of his mortgage interest in the real estate, amounting to $1,200. The complaint charged the total destruction of the building by fire November 28, 1894, and claimed $481.64 by reason of loss on household furniture, beds, bedding, wearing apparel, etc., and alleged a loss of $285.50 on the stock of wines, cigars, etc. The fire and partial destruction of the personal property were admitted by the answer, but all liability under the policy was denied (1) because it was alleged that the fire was set by the plaintiff Wolters, or by his procurement; (2) because Wolters, by his conduct at the time of the fire, actively interfered to prevent salvage by neighbors and friends who were present, and that his conduct in that respect was fraudulent, whereby he forfeited any right to recover damages for personal property under the policy. The jury found for the plaintiffs, and assessed their damages at $1,963,--that is to say, $463 over and above the insurance on the building; it appearing that the building was totally destroyed, within the meaning of the law. The undisputed evidence shows the value of the household and kitchen furniture, utensils, and effects covered by the policy was in excess of $500, and the damage to them by reason of the fire was $481.64; that the value of the saloon furniture and fixtures before the fire was $294.50, and the loss or damage by reason of the fire, $285.50. So that the loss was far in excess of the amount of the insurance. Evidence was given of facts and circumstances tending to show that the fire was incendiary in its origin, and also to show that the plaintiff Wolters absented himself from the fire about 25 minutes or half an hour, and tending to show that he made no effort to save anything. One witness testified that, when they tried to get into the front door, Wolters touched him on the shoulder and said: “ ‘Leave that door shut.’ I says, ‘Why?’ He says, ‘I shouldn't take anything out.’ I asked, ‘Why?’ He says, ‘If you take it up, you will break it anyway, and I won't get any insurance for it.’ ” Other witnesses testified to similar facts, and there was sufficient testimony to require that the question whether Wolters not only made no effort to save anything, but also whether he actively interfered to prevent friends and neighbors from making any salvage, be submitted to the jury. Plaintiff Wolters testified: That at the time of the fire he was greatly excited, and after he got dressed,--got some shoes and coat,--there were a couple of fellows at the front door. He knew not who they were. They were trying to take some stuff out. That the door was not locked,--was left open. That he made some remark to them about tearing out the things, and, rather than to tear them out, they should leave them in, or something like that. He could not remember exactly what he did say,--something about breaking the furniture or tearing it up. That he was too excited to remember what kind of remarks he made. And he testified to facts and circumstances tending to show that the loss was a fair and legitimate one. So that the whole matter became appropriately a question for the jury. The plaintiffs had judgment on the verdict, and defendant appealed.

The questions arise upon the instructions of the court given and refused. The defendant requested the court to instruct the jury that “it was the duty of the plaintiff, at the time of the fire, not only to use all reasonable exertion on his own part, but to encourage other persons to assist in saving as much as possible of the unsaved property from destruction, and if you find that the plaintiff not only...