Worachek v. New Denmark Mut. Home Fire Ins. Co.

• Decision Date: 31 January 1899
• Citation: 102 Wis. 88,78 N.W. 411
• Parties: WORACHEK v. NEW DENMARK MUT. HOME FIRE INS. CO.
• Court: Wisconsin Supreme Court

102 Wis. 88

78 N.W. 411

WORACHEK

v.NEW DENMARK MUT. HOME FIRE INS. CO.

Supreme Court of Wisconsin.

Jan. 31, 1899.

Syllabus by the Judge.

1. A policy of insurance on a building and contents, the premium being distributed part to each species of property, is a single, indivisible contract, and under a general forfeiture clause in the policy, if one part of the risk is affected, the entire risk is affected. What bars a remedy on the policy as to one part of the property, bars the remedy as to all.

2. If a policy of insurance cover a building and contents, and the entire property be destroyed by fire, and the policy contain a clause forfeiting all claims thereunder and barring all remedies thereon in case of any false swearing in regard to the loss, and there be such false swearing, which does, or is liable to, prejudice the insurance company as to any part of the property destroyed, the effect is to forfeit the entire loss.

Appeal from circuit court, Brown county; S. D. Hastings, Jr., Judge.

Action by George Worachek against the New Denmark Mutual Home Fire Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed.

Action for recovery on a fire insurance policy. The subject of the insurance was a dwelling house and the ordinary personal property of the occupants. The complaint stated facts requisite to a recovery. The answer, among other things, claimed a forfeiture of all liability on the contract of insurance because of acts of the assured and a clause of the policy which reads as follows: “Any misrepresentation or fraud or concealment or false swearing, by the insured, in relation to any insurance, or the cause of any loss or damage to any insured property, or the quality, quantity, description or value of any property destroyed or damaged by fire, shall forfeit all claim by virtue of the policy and be a full bar to all remedies upon the same.” It was alleged that the assured knowingly made a false statement under oath as to the amount of personal property destroyed by the fire, with intent to defraud the insurance company. The jury found in defendant's favor on that point. As to the actual loss there was no dispute on the evidence. The loss on the building was total. A motion was made for judgment in defendant's favor and denied. Judgment was rendered for plaintiff for the loss on the house, but denied as to the loss on the personal property.

Defendant appealed.

Feeney & Atwood, for appellant.

Greene, Vroman & Fairchild, for respondent.

MARSHALL, J. (after stating the facts).

The sole question for decision on this appeal is, when a policy of insurance against loss by fire covers a building and personal property located therein, the premium being distributed part to the realty and part to the personalty, and the building is totally destroyed by fire and the personal property injured or destroyed as well, and the policy provides that any false swearing by the insured in relation to the quantity, quality, description or value of the property destroyed or damaged shall forfeit all claim under such policy and bar all remedies thereon, and...