Jaeger v. Farmers' Mutual Town Fire Insurance

183 Wis. 313 | Wis. | 1924

Jones, J.

Appellant’s counsel argue that the finding of the jury that plaintiff made no change or alteration in the building which increased the fire hazard should have been set aside. In Kircher v. Milwaukee Mech. Mut. Ins. Co. 74 Wis. 470, 43 N. W. 487, the policy was on a dwelling house to be occupied by tenants. The policy provided that:

“. . . It should be wholly void . ‘. if the premises should at any time be occupied or used, in whole or in part, for. any purpose, whether manufacturing or otherwise, different from that set forth in the application or policy, or if the risk should be increased by means within the control of the assured. The tenants used the second story of the house for shaving hoops for a period of one week, but such use ceased three days before the fire, arid the jury found that it did not materially increase the risk.” Held, that there was no substantial breach of the condition.

It was held that this clause was a continuing warranty and that a substantial breach of it would avoid the policy even though the transaction in no way contributed to the loss, but that to prevent such forfeiture the contract should be -construed strongly against the insurer and as favorably for the insured as its terms would reasonably permit. It was also held that the jury were not concluded on the question whether the hazard was increased by the testimony of men skilled in the business of insurance.

In the present case expert .testimony was received in behalf of defendant, but the question was fairly submitted to the jury, and although there might be differences'of opinion on the subject we see no good reason for reversing this finding. Kircher v. Milwaukee Mech. Mut. Ins. Co. 74 Wis. 470, 43 N. W. 487; Siemers v. Meeme Mut. H. P. Ins. Co. 143 Wis. 114, 126 N. W. 669.

It is the next contention that defendant is. not liable because mechanics were employed in the building beyond a period of fifteen days during the life of the policy. The jury found that mechanics were so employed, and there is no ground for reversing that finding.

It is argued that the repairs and changes as to division • walls, fire walls, and thé concrete floor relieved the company from liability under the terms of the policy, and were not authorized by either of the permits.

The policy does not define fire walls or division walls. By sub. (5), sec. 101.10, Stats., the industrial commission is given power:

“To ascertain, fix and order such reasonable standards, rules or regulations for the construction, repair and maintenance of places of employment and public buildings, as shall render them safe.”

Pursuant to this authority the commission in their Building Code, Order 5108, have defined a standard fire wall as follows:

“A standard fire wall shall be built of brick or concrete not less than twelve inches in solid thickness, or of reinforced concrete not less than six inches thick. Every standard fire wall shall extend either from the foundation or from a fireproof floor, to a fireproof ceiling; or if the roof is not fireproof, such wall shall extend at least three feet above the highest adjoining roof line of the same building and shall be capped with stone, tile, or other indestructible material. Every opening in a standard fire wall shall be closed with a standard fire door or a fixed standard fire window.”

And have defined a division wall as follows:

“Where a dividing wall is required in any building, such wall shall be of solid incombustible fire-resisting material of the same thickness as required for inclosing walls; and shall be continuous from the foundation to the roof-, in a fireproof building, or to three feet above the roof in a non-fireproof building. Each opening in a division wall shall have a standard fire door on each side of the wall.” Order 5202, Building Code.

According to the testimony the walls were not of this character. In the absence of any other definition we consider that the trial court was justified in holding that repairs and alterations were not made in the walls contrary to the terms of the policy.

This leaves the question whether the alterations and repairs in the concrete floor caused a forfeiture. The fifteen-day clause is the only one in the policy which restricts the right to make the alterations and repairs. But for that clause any changes might have been made which did not increase the hazard. It thus becomes necessary to inquire what was the object and what the effect of the two permits which were attached.

Defendant’s counsel argue that the first permit given in the statement of facts is controlled by the heading and relates only to outbuildings, but its language is broad and not so restricted, and no outbuildings seem to have been insured. Neither permit contains any express limitation as to the time for making • alterations and repairs, and neither contains any clause of forfeiture. The fifteen-day clause was by its very terms subject to modification by agreement in writing added to the policy.

The permits seem to have little meaning unless they conferred privileges as to making changes not conferred by the policy. In a careful opinion the trial court came to the conclusion that the fifteen-day clause was suspended by the permits and that the insurance at the time of the fire was neither forfeited nOr suspended. It is ably argued by counsel for defendant that the permits gave no> additional powers or privileges. But in our opinion there is such doubt on this subject that the ordinary rule for the construction of insurance contracts may be applied; that is, they are to be most strongly construed against the insurer and in favor of the insured, especially where a forfeiture is involved. Morse v. Buffalo F. & M. Ins. Co. 30 Wis. 534; Hammel v. Queen’s Ins. Co. 54 Wis. 72, 11 N. W. 349; Kircher v. Milwaukee Mech. Mut. Ins. Co. 74 Wis. 470, 43 N. W. 487; Patterson v. Natural Premium Mut. L. Ins. Co. 100 Wis. 118, 75 N. W. 980; Siemers v. Meeme Mut. H. P. Ins. Co. 143 Wis. 114, 126 N. W. 669; Fehrer v. Midland Cas. Co. 179 Wis. 431, 190 N. W. 910.

The application contains the following:

“Automobile permit. Permission to house one automobile in bairn or other outbuilding provided the part of the building in which the automobile is stored has only an earth, concrete, or other incombustible floor.”

It is further contended that the failure to mention the automobile and housing it without permission avoided the policies, and that the court should have submitted a question to the jury on the subject. The car had not been in use for several months. It was partly dismantled, the wheels having been taken off, and contained no gasoline. When the application was made, the agent knew the facts and that the shed was used as a garage. In Welch v. Fire Asso. 120 Wis. 456, 98 N. W. 227, this court quoted from a former decision as follows:

“If, when the agent of an insurance company 'delivers a policy of insurance, he has knowledge of the facts as regards the subject of the insurance inconsistent with the terms of the policy, the assurer, by accepting the premium, is estopped from declaring the policy void because the terms thereof were not so changed in writing as conform'to the facts.” Page 461.

The same rule was declared in Gould v. Pennsylvania F. Ins. Co. 174 Wis. 422, 183 N. W. 245. We do not think the objection well taken.

By the Court. — Judgment affirmed.