Kludt v. German Mutual Fire Insurance

152 Wis. 637 | Wis. | 1913

ReewiN, J.

Tbe main question on this appeal is whether John Kludt, tbe plaintiff’s intestate, bad an insurable interest in tbe property covered by tbe policy in suit. A very able argument is made by counsel for appellant to tbe effect that be bad not, and many cases from other jurisdictions are cited in support of tbe contention. Tbe following authorities are cited by counsel for appellant and, in a measure at least, support their contention: German American Ins. Co. v. Paul, 2 Ind. Ter. 625, 53 S. W. 442; Bassett v. Farmers’ & M. Ins. Co. 85 Neb. 85, 122 N. W. 703; Clark v. Dwelling House Ins. Co. 81 Me. 373, 17 Atl. 303; Planters’ Mut. Ins. Co. v. Loyd, 71 Ark. 292, 75 S. W. 725; Traders’ Ins. Co. v. Newman, 120 Ind. 554, 22 N. E. 428; Agricultural Ins. Co. v. Montague, 38 Mich. 548; Tyree v. Virginia F. & M. Ins. Co. 55 W. Va. 63, 46 S. E. 706; Trott v. Woolwich M. F. Ins. Co. 83 Me. 362, 22 Atl. 245; Glaze v. Three Rivers F. M. Ins. Co. 81 Mich. 349, 49 N. W. 595; Fox v. Queen Ins. Co. 124 Ga. 948, 53 S. E. 271; Scott v. Dixie F. Ins. Co. 70 W. Va. 533, 74 S. E. 659; Pelican Ins. Co. v. Smith, 92 Ala. 428, 9 South. 327; Eminence Mut. Ins. Co. v. Jesse, 1 Met. (Ky.) 523; Ostrander, Fire Ins. (2d ed.) p. 212, § 61; 2 Joyce, Ins. § 1049; 19 Cyc. 598, note 11 and cases.

The foregoing cases turn mainly upon the ground that, in states where the laws relating to married women give them the absolute ownership in their separate property and the possession, control, and management of it, the husband has no insurable interest in his wife’s property solely by virtue of the marital relation. But it has been held that in states where the law gives the husband an interest or present right of enjoyment in the wife’s property during her life he has an insurable interest. Warren v. Springfield F. & M. Ins. Co. 13 Tex. Civ. App. 466, 35 S. W. 810; Georgia Home Ins. Co. v. Brady (Tex. Civ. App.) 41 S. W. 513; Continental F. Asso. v. Wingfield, 32 Tex. Civ. App. 194, 73 S. W. 847; Doyle v. American F. Ins. Co. 181 Mass. 139, 63 N. E. 394; Harris v. York M. Ins. Co. 50 Pa. St. 341; Trade Ins. Co. v. Barracliff, 45 N. J. Law, 543; Mutual F. Ins. Co. v. Deale, 18 Md. 26; Franklin M. & F. Ins. Co. v. Drake, 2 B. Mon. 47, 50; Leathers v. Farmers' M. F. Ins. Co. 24 N. H. 259; Webster v. Dwelling House Ins. Co. 53 Ohio St. 558, 42 N. E. 546, 30 L. R. A. 719. There are also cases holding that where the husband was the equitable owner and the wife a nominal holder of the title, or where the husband in•sured as the agent of the wife, the policies were valid.

In view of the condition of the authorities elsewhere, were the question new here we should regard it, troublesome. The case at bar, however, seems to be ruled by Horsch v. Dwelling House Ins. Co. 77 Wis. 4, 45 N. W. 945. In that case the contention was that the plaintiff had no insurable interest in the property. The facts were quite similar in that case to the facts in the case at bar, except that in the former the husband bought the property, paid for it with his own money, and took the title in the name of his wife, and there was an understanding between him and his wife that she would deed the property to him at his request; also that the personal property on the farm belonged to the husband, and the agent was informed when he issued the policy in the Ilorsch Gase that the title to the land was in the wife. It is strenuously insisted by counsel for appellant that because 'of the difference in facts above indicated the Ilorsch Gase is distinguishable from the instant case. It is true that in the Ilorsch Case the husband had an equitable interest which the parties might recognize by virtue of payment of purchase price of the land and the understanding that his wife would deed to him on request. But the opinion does not seem to rest solely upon this ground. At page 6 the court said:

“The actual possession and beneficial use of the farm were in the plaintiff, with the full consent of the wife, at the time the policy was issued as well as at the time of the loss. ■ There can be no doubt, therefore, that the plaintiff had a pecuniary and valuable interest in the property insured and destroyed, and therefore an insurable interest. The possession and use of the house and barns was of the utmost importance to him in providing á support for himself and family, and their destruction was substantially as disastrous to him in his endeavors to support himself and family as though he had the-actual title. He had in fact the possession and the entire beneficial use, of which he was deprived by their destruction. The actual possession and use of property is a valuable right,, and it is especially valuable when held with the permission of the real owner.”

The facts upon which the above doctrine rests are present in the instant case, as will be seen from an examination of the stipulated facts set out in the statement of the case. The Horsch Case was decided in 1890, and sc far as tbe writer is informed tbe doctrine there enunciated bas never been questioned by this court.

Wood in bis work on Insurance says:

“It is not necessary tbat tbe assured should have either a legal or equitable interest, or indeed any property interest, in tbe subject matter insured. It is enough if be bolds such a relation to the property tbat its destruction by tbe peril insured against involves pecuniary loss to him or to those for whom be acts.” Vol. 1, sec. 281, p. 645 (2d ed.).

Tbe facts in tbe instant case bring it within tbe doctrine as laid down in tbe Horsch Case. See, also, May, Ins. §§ 76, 77; 1 Phillips, Ins. 67; Danvers M. F. Ins. Co. v. Schertz, 95 Ill. App. 656; Redfield v. Holland Purchase Ins. Co. 56 N. Y. 354.

Point is made by counsel for appellant tbat in tbe Horsch Case the insured owned tbe personal property, and tbat the insurance company knew all tbe facts and was not a mutual company. Tbe fact tbat Horsch owned tbe personal property would not give him an insurable interest in tbe real estate. Nor can tbe fact tbat tbe appellant in tbe instant case did not know tbe condition of tbe title alter tbe situation of tbe parties as to liability.

There was no fraud on tbe part of tbe plaintiff’s intestate. He made no false representations. If the defendant desired to. insure only one who was tbe sole and unconditional owner, it should have so provided in tbe contract of insurance. Appellant made no inquiry respecting title, and no representation as to title was made, therefore tbe finding of tbe court below tbat tbe plaintiff’s intestate did not misstate or fraudulently conceal any fact material to tbe risk upon tbe issuance of tbe policy was correct. Campbell v. American F. Ins. Co. 73 Wis. 100, 40 N. W. 661; Dunbar v. Phenix Ins. Co. 72 Wis. 492, 40 N. W. 386; 19 Cyc. 690; Johannes v. Standard F. Office, 70 Wis. 196, 35 N. W. 298; Roloff v. Farmers’ H. M. Ins. Co. 130 Wis. 402, 110 N. W. 261; Vankirk v. Citizens’ Ins. Co. 79 Wis. 627, 48 N. W. 798.

Tbe fact that the appellant is a mutual company and limited by paragraph 13 of its constitution, set out in the statement of facts, cannot save it from liability in the instant case. It provides that whoever sells or exchanges his property, leaves the company by such act and loses all rights, etc. This paragraph provides for a forfeiture and must be strictly construed against the appellant. Redman v. Hartford F. Ins. Co. 47 Wis. 89, 1 N. W. 393; Siemers v. Meeme M. H. P. Ins. Co. 143 Wis. 114, 126 N. W. 669; Joliffe v. Madison M. Ins. Co. 39 Wis. 111; Wakefield v. Orient Ins. Co. 50 Wis. 532, 7 N. W. 647; Dolliver v. St. Joseph F. & M. Ins. Co. 128 Mass. 315; Wolf v. Theresa Village M. F. Ins. Co. 115 Wis. 402, 91 N. W. 1014.

The issuance and acceptance of the policy in question does not conflict with, but on the contrary is consistent with, the terms of paragraph 13 of appellant’s constitution.

It is also insisted by appellant that, even if the plaintiff recovers in this case, the damages should be limited to the value of the insurable interest of John Kludt, which would be only a nominal sum, and Beekman v. Fulton & M. C. F. M. F. Ins. Asso. 66 App. Div. 72, 73 N. Y. Supp. 110, is relied upon. In that case Mosher, the insured, had a life estate and insured the property in his own name. At page 75 (66 App. Div.) the court said: “There is nothing in the transaction indicating that Mosher intended to insure for himself and the remainderman, and hence the rule that would fix the amount of his recovery in such a case cannot apply to this.”

In the instant case, however, the deceased had an insurable interest, and the contract of insurance insured the property, not his interest. There is nothing in the policy or circumstances of the case to indicate that the deceased insured his interest merely. The loss was total, and the value of the property insured was in excess of tbe amount for which the property was insured. The damages recoverable, therefore, are the sum for which the property was insured. 19 Cyc. 839; Horsch v. Dwelling House Ins. Co. 77 Wis. 4, 45 N. W. 945; St. Clara F. Acad. v. Northwestern Nat. Ins. Co. 98 Wis. 257, 73 N. W. 767; Siemers v. Meeme M. H. P. Ins. Co. 143 Wis. 114, 126 N. W. 669; Johnston v. Charles Abresch Co. 123 Wis. 130, 101 N. W. 395; Andes Ins. Co. v. Fish, 71 Ill. 620.

It seems to be well settled that in the absence of fraud or mistake, where the insured has an insurable interest at the time the policy is issued and there is no limitation in the policy, and the insurable interest continues to the time of loss, the whole amount of the damage done to the property, not exceeding the amount for which it is insured, may be recovered. It follows that the judgment must be affirmed.

By the Court. — The judgment is affirmed.