128 Wis. 233 | Wis. | 1906
The following opinion was filed February 23, 1906:
The contract of insurance provides that the ■transportation company “and other owners as interest may appear” are to be. indemnified against loss by fire of the property described and contained in the warehouse specified in the policies, including certain claims thereon, whether “their own or in their custody as warehousemen, forwarders, carriers, or otherwise.” It is contended that this agreement covers only such property and such interest therein as the transportation company and the insurance companies intended to include; that from the phraseology employed it is manifest that the transportation and insurance companies contemplated only such property and interests in property as the transportation company had within its warehouse and to which it saw fit to attach the insurance; and that this intention of the parties to the insurance is shown by the subsequent provisions •of the policies, authorizing the transportation company to
It is insisted, however, that this construction of the contract is opposed by the subsequent stipulation providing that “the companies named herein as the assured (although they may or may not be liable for any loss) shall, after a loss, give notice to said assurer who was insured hereby, and said notice shall be conclusive upon the assurer as to who, in addition to said companies, was so insured.” It is averred that the terms of this stipulation clearly show that the indemnity for loss was to be limited to the property which the transportation company elected to include. Practically, this construction allows the transportation company at its option to cut off any and all claims for loss of property in its custody which was plainly covered by the terms of the policies, and thereby to deprive the owner of the lost property of a right clearly within the terms of the agreement. Such a construction should not be approved if the agreement can be given a reasonable meaning consonant with the intention expressed in the other parts of the policies and by which the rights and interests of the property owners will be preserved. In effecting the insurance the transportation company acted as the representative and agent of the property covered by the terms of the policies, by the terms it fixed the class of owners whose property was insured, and by the notice clause it undertook to notify the insurance companies of what persons were in
We find no foundation for the claim that the action cannot be maintained because there is no evidence showing that notice and proof of loss were given and made as required by the contract. It appears that the insurance companies were notified of the fire by the assured soon after its occurrence, and that the assured submitted an itemized statement of the different articles destroyed by the fire; this statement'being in the form two schedules, designated as “A” and “B,” the former containing those articles which the assured claimed were included, and the latter those articles and the names of the owners which may have been insured under the policy.
By the Court. — The judgment is affirmed.
A motion for a rehearing was denied May 8, 1906.