192 Wis. 160 | Wis. | 1927
This is an action brought to recover upon a fire insurance policy issued by the appellant company to one Fred Day. A coverage of $1,200 was placed on “frame and log barn and shed and silo.” This property burned on the 1st day of April, 1925. On the 2d day of April Fred Day conveyed the farm upon which these buildings were located to the plaintiffs and assigned to them his cause of action under the insurance policy for the fire loss sustained .on April 1st. The company interposed numerous defenses. The court directed a verdict in favor of the plaintiffs.
It is further contended that the policy became void because the premises became incumbered, and at the time of the fire were incumbered for more than fifty per cent, of their value, contrary to a provision of the policy. The only incumbrance on the premises at the time of the fire, except perhaps delinquent taxes, was in existence at the time of the issuance of the policy. It consisted of a mortgage owned by Lucy Jenn. The policy itself specifically provides that the loss shall be payable to Lucy Jenn as her interest may appear. The company knew of this mortgage and is chargeable with knowledge of the amount thereof. The amount of the face of the mortgage was $8,000. In a questionnaire supposed to have been signed by the applicant the value of the land was fixed at $15,000. The company, therefore, had notice that the
The company attempted to show that subsequent to the issuance of the policy the land had greatly depreciated in value and that the ratio between the amount of the incumbrance and the value of the land had thereby greatly increased. The fact remains, however, that the company issued this policy knowing that this mortgage was an incumbrance upon the farm, and the idea that a decrease in the value of the land so as to increase the ratio between the amount of the incum-brance and the value of the land offends against the ordinary provision of an insurance policy limiting incumbrances is indeed a novel one. It is well settled that such provisions refer to incumbrances created by the voluntary act of the insured. The term “incumbrances” as used in this connection in insurance policies does not include involuntary incumbrances, such as tax liens and judgments procured in invitum. Hosford v. Hartford Fire Ins. Co. 127 U. S. 404, 8 Sup. Ct. 1202; Baley v. Homestead Fire Ins. Co. 80 N. Y. 21; Georgia Home Ins. Co. v. Schild, 73 Miss. 128, 19 South. 94; May, Ins. § 292 A; 14 Ruling Case Law, 1130. These authorities also dispose of the contention that delinquent taxes constitute additional incumbrances within the meaning of the policy.
The company also claimed that there was prior insurance on the property. The only proof with reference to this matter was that the Herman Fire Insurance Company had issued a policy on the same property in 1918 to the former owner thereof. There was no proof that the policy had been assigned by the then owner of the premises to the applicant for thé present insurance or that it was continuing and in force. If the property had been conveyed without an-assignment of
In addition to the coverage of $1,200 on “frame and log barn and shed and silo” the policy insured “lumber and material for house” in the sum of $2,000. It appears that at the time the application for insurance was made the owner had materials on the ground for the purpose of building a house. These materials were originally insured in the sum of $2,000. Thereafter when the house was completed the insurance on this building material was transferred to the house and additional insurance of $2,000 placed on the house. Although the house did not burn, the company, on the theory that the policy was indivisible, which we assume, sought to show that the amount of insurance secured on the lumber and later on the house was secured through fraudulent misrepresentations concerning the value both of the material and the house. It should be here stated that the application for insurance was not signed by the applicant at all. It appears that the owner of the premises casually met the agent of the company and told him he wanted some insurance on the premises, and after some talk the agent repaired to his office, made out the application himself, filled in what he deemed proper answers to the questionnaire contained in the application, and signed the application “Fred Day, applicant. By Moser.” It is undisputed that Day, the applicant and owner, never saw this application. On the back of this application Moser certified that he had made a personal examination of the property and that he considered the estimated value of the buildings as contained in the application correct. He further certified that the house was to be built. The testimony of the agent as to the conversation between him and the owner with reference to insurance on the material on the ground for the construction of the house is as follows:
“Q. Was there any talk between you and him at the time as to how much should be put on the building, or on the ma*165 terial for a residence?. A. Well, I put $2,000, I believe, on material for a building.
“Q. Was there talk that it was material instead of a residence? A. Yes. He was going to put up another building there, or a bungalow, something like that.
“Q. What was said as to the amount of insurance he wanted on that? A. Well, he wanted the insurance on the-material.
“Q. How much? A. $3,000, I guess.
“Q. And you prepared the application accordingly? A. Yes.
“Q. Was there any further talk between you and Mr. Day along in December of 1922? A. In December he wanted some additional insurance on it.
“Q. On what? A. On the bungalow.
“Q. How much? A. Or whatever you call it.
“Q. How much? A. I guess he wanted some $2,000, $2,100.”
That is all the testimony concerning the misrepresentation of the value of the material or of the dwelling after it was constructed. We discover in this testimony no representation whatever concerning either the value of the material or the value of the dwelling. According to this testimony the applicant simply said he wanted $3,000 insurance on the material and later on $2,000 additional on the house. There was nothing said about the value of the material or the house. The agent himself certified that he made a personal investigation of the premises before the application for insurance was sent to the company. In the absence of such a representation, testimony concerning the actual value of the material or of the house after it was constructed was utterly immaterial, and the court properly excluded such evidence.
A further question is whether the plaintiffs in this action were entitled to recover as and for a total loss on the “frame and log barn and shed,” which was covered as one item in the sum of $1,200. The evidence showed that the barn and shed were completely destroyed. It further appeared, how
“Q. What was destroyed by that fire? A. Oh, the barn, there was a log barn there, and the silo roof and some more sheds.
“Q. Were they completely destroyed? A. Yes, sir.
“By Mr. Schnorenberg: That is all.
“By Mr. Kading: That is all.
“By the Court: You are satisfied that there was a fire there April 1st, and that it destroyed the shed and barn and the silo?
“By Mr. Kading: And the silo, yes.
“By Mr. Schnorenberg: There is no dispute about that.
“By Mr. Kading: No.
“By the Court: They admit that.
“By Mr. Kading: Yes.
“By Mr. Schnorenberg: That is all.
“By Mr. Lueck: We rest, your Honor.”
We cannot but regard this as an unequivocal admission in open court by the attorneys for the company that the property involved was completely destroyed by fire. Immediately after that concession the plaintiffs rested and did not offer proof concerning the damage resulting from the fire, relying upon this concession made in open court and on the provi
We believe that we have thus dealt with all of the substantial defenses relied upon by the company, with the result that we find nothing constituting a jury issue, and there was no error committed by the court in directing a verdict in favor of the plaintiffs.
There remain to be considered, however, questions presented by a plea in abatement which was interposed by the defendant company at the time of trial. The by-laws of the company provide that “the amount awarded to persons sustaining the loss shall be paid as soon as practicable, and in no case to exceed-one hundred days from the time of receivr ing the notice of the loss, except the company shall determine to resist the payment of such loss on legal grounds, in which case the directors shall give notice in writing of such determination with their reasons therefor to the member claiming such loss within fifteen days after receiving notice of the same.” The plea in abatement was founded on the fact that this action was commenced within one hundred days after the filing of the proofs of loss. The plaintiffs contended that it was not brought until after the defendant declined to pay the loss, and that after such declination plaintiffs were no longer bound by any limitation contained in the policy with reference to an action to recover.
It is well settled that denial by an insurance company of any liability on its policy is a waiver of a provision in its policy fixing the time within which actions shall be begun. French v. Fidelity & Cas. Co. 135 Wis. 259, 115 N. W. 869. The plea in abatement was tried and the jury found that the company did decline to pay the loss before the action was commenced. Appellant here contends that that finding is not supported by the evidence. We hold that there is sufficient
By the Court. — Judgment affirmed.