Works v. Manchester Fire Assur. Co.

• Decision Date: 10 March 1896
• Citation: 66 N.W. 525,92 Wis. 510
• Parties: OSHKOSH MATCH WORKS v. MANCHESTER FIRE ASSUR. CO.
• Court: Wisconsin Supreme Court

92 Wis. 510

66 N.W. 525

OSHKOSH MATCH WORKS

v.MANCHESTER FIRE ASSUR. CO.

Supreme Court of Wisconsin.

March 10, 1896.

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

Action by the Oshkosh Match Works against the Manchester Fire Assurance Company on a fire policy. From a judgment for plaintiff, defendant appeals. Reversed.

Action on a policy of fire insurance issued by the defendant to the plaintiff, to recover the value of 1,247 cases of matches, alleged to have been totally destroyed by fire, and $135.75, for injury caused by the same fire to 908 other cases of matches, all insured by the defendant in the amount of $1,500, except as in the policy provided, which contained the provisions of the “standard fire insurance policy,” so-called, under the act of 1891 (chapter 195). The defense was that the plaintiff had not fulfilled and performed the conditions of the policy on its part; that by the terms of the policy, as the fact was, it was stipulated that, if fire occurred, the plaintiff was to protect the property from further damages, forthwith separate the damaged and undamaged personal property, put it in the best possible order, and make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon, and, as often as required, should exhibit to any person designated by the defendant all that remained of the property therein described. It also contained the usual agreement for appraisal in case of disagreement as to the amount of loss, and that the company should not be held to have waived any provision or condition of the policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination therein provided for; and the loss was not to become payable until 60 days after notice, ascertainment, estimate, and satisfactory proof of the loss had been received, including an award by appraisers when an appraisal had been required; and it was stipulated that no officer, agent, or other representative of the defendant should have the power to waive any provision or condition of the policy, except such as, by its terms, might be the subject of an agreement indorsed thereon or added thereto, and then only when written thereon or attached thereto, and no privilege or permission affecting the insurance under the policy should exist or be claimed by the insured, unless so written or attached. The defendant alleged, and the evidence at the trial was that, immediately after the fire, the plaintiff recased about 908 cases of the insured stock of matches, and shipped them out of the state, without the knowledge or consent of the defendant, and that the remainder of the stock, not actually burned, but damaged, and, as it was claimed by the plaintiff, destroyed, was burned up; and the defendant claimed that this was done with intent to deceive the defendant, and prevent it from ascertaining the amount of the loss or damage by an appraisal, and to defeat its right to take the damaged goods at their appraised value. The evidence was: That the fire occurred October 31, 1893, in the plaintiff's warehouse building, where manufactured matches were stored for shipment. That, as soon as it possibly could, it got the matches not burned put into the factory, and what they could not get into the factory they put into the yard, and threw a shed over them, and put a crew at work on them, as the water on the outside would soak into the cases. Some of the cases were burned up entirely, some of the ends burned off, some not burned a particle, but not any that were not wet. The fire department had played on them for two hours with four or five streams. The cases were opened, as well as the small boxes. If the matches were dry, they were repacked, and put in new cases. Those that were wet, with the old cases and wrappers, were thrown into a barrel, and removed and burned up in the yard. In this manner 908 cases were saved. 600 cases were absolutely destroyed. The other 600 or 700 cases, what remained of those not burned up, were of no marketable value; still, after they had been dried out, they would burn as well as ever. That when matches have been wet, the color runs down the sticks, and they swell up, and get out of shape, and get crooked, and the heads stick together, and the matches are not in this condition marketable, and therefore they were burned up. The 908 cases saved were shipped to Louisville, Ky., five or six days after the fire. The worthless and débris were burned in the yard, because they were dangerous, and would dry, so as to ignite. Many of the cases were so wet that they could not be packed over, and more damage was done by water than by fire. That the wet and damaged matches were considered valueless, were in the way of the company, and it could not take care of them, and they endangered surrounding property. Of these there were about 1,247 cases. Fred. Burgess, the plaintiff's secretary and...