73 Wis. 100 | Wis. | 1888
The respondent brought this action against the appellant to recover the value of a quantity of hay owned by him, and which had been destroyed by fire on the 18th clay of July, 1887. The facts stated in the complaint, and established by the evidence on the trial of the action, and upon which the respondent claims the right to recover of the appellant the value of the hay so destroyed, are substantially as follows: The respondent alleges in his complaint that one Burr Sprague was an agent of said insurance company, residing at the village of Brodhead in this state, and was duly authorized by said company to
The answer denies that the agent, Burr Sprague, had authority to make the contract of insurance set forth in the complaint; denies having knowledge sufficient even to form a belief as to whether the plaintiff was the owner of the hay described in the complaint, or as to whether such hay was destroyed by fire as alleged in the complaint, and requires plaintiff to make proofs of said facts; denies making any agreement to insure said hay for any sum or for any length of time, for the premium of $3 or any other premium; denies that plaintiff agreed to pay said $3 or any other sum for such insurance; denies that any policy was written or agreed to be written on said hay as alleged by the plaintiff. The answer then admits the receiving of a notice of the loss, but claims that the same was not a sufficient notice. The answer then sets up the form of the policy the company would have issued if one had been issued in conformity to the claim made by the plaintiff, and sets up that by the terms of such policy no action could be maintained against the company for any loss thereunder until sixty days after proofs of loss had been given to the company as required by said policy; and alleges that this suit is pre
On the trial, it was clearly established by the evidence of Purr Sprague that he was the agent of the defendant, and had full authority to take risks against fire for said company, and issue their policies covering such risks. And no contention is made on the hearing of this appeal that such agent could not have bound the company by issuing a policj1- of insurance upon the hay in question.
The evidence in regard to the contract of insurance is the evidence of the plaintiff and of said agent Sprague. The plaintiff testified as follows: “I saw Mr. Sprague about that hay on the 2d day of July, 1887, about o o’clock P. M. He was sitting on a dry-goods box in front of Terry’s store. I had a conversation with him about that hay. I said ‘ Sprague, I have got a little baled hay that I want to get insured.’ Tie says, ‘ Where is your hay ? ’ I told him it was in Jake Bush’s tobacco shed. He said, ‘How far is that shed from his house?’ I told him the
Sprague’s testimony on the same subject is as follows: “ On July 2, 1887, Mr. Campbell told me he wished some insurance on some hay he had,— an amount of hay on which he wished insurance. I asked him as to the condition of the hay, whether it was loose hay or baled hay, and he said it was all baled hay. I asked him where it was. He said it was in the Bush barn, on what is known as the ‘Bush block;’ and I asked him how much he had there, and he said $800 or $1,000 worth, somewhere along there. I asked him how much insurance he wanted. He said he wanted $500 insurance. I asked him if he pressed hay there in the barn. He said, ‘Ho; ’ he pressed it away from there, and stored it there. I asked him if there was any loose hay in the barn — unpressed hay., He said, ‘ Ho.’ I then asked him if he knew the distance between that barn and the house, and particularly whether it was more than 100 feet. I said to Mr. Campbell that insurance companies did not like to take insurance on barns or property in barns,
This is all the evidence given on either side in regard to the contract, and it appears to us to be conclusive upon the question whether a contract to insure was made. The plaintiff testifies that there was an agreement to write the policy for $500 for six months, to take effect from 12 o’clock noon on the 4th day of July, for a premium, to be paid by him of $3. The agent of the defendant testifies to the same thing, except he does not say when it was to take effect; but he does say that he agreed to write the policy for six months for the agreed premium of $3, but is silent
Under this evidence it is clear that if the agent had issued the policy as he admits he agreed to, the company would have been bound by it until it gave notice that it elected • to cancel the same, and if no notice that it chose to cancel the same had been given before a loss it would be too late to affect the liability of the company to the plaintiff. All the evidence on the subject of the contract being before the court, and there being no material contradiction as to what the facts were, it seems to us that the learned circuit judge was correct in directing a verdict for the plaintiff upon that question. That the evidence established a contract to insure as claimed by the plaintiff, although the premium was not paid, is settled by the decision of this court in the case of King v. Hekla F. Ins. Co. 58 Wis. 508, and the case at bar is distinguished from the case of Taylor v. Phœnix Ins. Co. 47 Wis. 365, exactly as the case in 58
That a person may maintain an action to recover damages for the breach of a contract to insure, is well established by the authorities, and the damages' in such a case is the sum. which the policy was to insure, if the property to be insured, and which was destroyed by fire during the time of the life of the policy as it was. agreed to be issued, was of the value to be insured by the policy. Upon this question there is no dispute. If the company is liable at all it is liable for the $500. What was said by this court in the case of King v. Hekla F. Ins. Co., supra, is strictly applicable to the facts in this case, and the ruling in that case is supported by the elementary writers upon the subject of insurance, as well as by the authorities. King v. Hekla F. Ins. Co., supra; Northwestern Iron Co. v. Ætna Ins. Co. 26 Wis. 78; Scott v. Home Ins. Co. 53 Wis. 238; Strohn v. Hartford F. Ins. Co. 37 Wis. 625; Mechler v. Phœnix Ins. Co. 38 Wis. 665; Fleming v. Hartford F. Ins. Co. 42 Wis. 616; Rockwell v. Hartford F. Ins. Co. 4 Abb. Pr. 179; Taylor v. Phœnix Ins. Co. 47 Wis. 365; Carpenter v. Mut. S. Ins. Co. 4 Sandf. Ch. 408; Perkins v. Washington Ins. Co. 4 Cow. 645; Kelly v. Commonwealth Ins. Co. 10 Bosw. 82; Lightbody v. North American Ins. Co. 23 Wend. 18, 24; Ellis v. Albany City F. Ins. Co. 50 N. Y. 402, 405; Commercial M. M. Ins. Co. v. Union M. Ins. Co. 19 How. 321; Trustees v. Brooklyn F. Ins. Co. 19 N. Y. 305; 1 Wood on Ins. § 11, and cases cited in note 7; Baile v. St. Joseph T. & M. Ins. Co. 73 Mo. 371, 387.
It is also objected by the learned, counsel for the appellant that there was no valid contract to insure, because the
The offer of the company to show on the trial that the plaintiff did not disclose the fact that the barn contained some other property than the hay insured, was properly rejected upon two grounds: First, it is not alleged in the answer that there was a fraudulent concealment of the facts sought to be proved; and, second, the fact that these things were in the barn would not avoid the contract to insure, as no inquiry was made by the agent in regard to them at the time of making the contract, although he did question the plaintiff in regard to the situation of the barn. Not having questioned the plaintiff as to what the barn contained, he cannot now claim that it contained other property which increased the hazard of insurance, unless he can show that the plaintiff concealed the facts fraudulently; and there,is, as stated above, no such allegation in the answer. See Dunbar v. Phœnix Ins. Co. 72 Wis. 492.
The objection that the plaintiff did not make proofs of loss as required by the policies issued by the company, and as would have been required by the policy had one been issued according to the agreement, is no defense to the action upon the contract to issue a policy and a refusal by
We think no further proofs of loss were required for the further reason that the company denied all liability on the ground that it never had agreed to insure, and in fact never had insured, the plaintiff’s property in any way. This court, as well as all other courts, hold that when the insurer denies all liability for the loss on the ground that there has been no insurance, or that the policy, if one has been issued, is void on the ground of fraud or otherwise, then the company cannot insist upon a strict compliance with the terms of the policy as to the manner of making proofs of loss. See King v. Hekla F. Ins. Co. 58 Wis. 508; McBride v. Republic F. Ins. Co. 30 Wis. 562, 568; Parker v. Amazon Ins. Co. 34 Wis. 363; Harriman v. Queen Ins. Co. 49 Wis. 71, 82.
We find no error in the record.
By the Oourt.— The judgment of the circuit court is affirmed.