Lingelbach v. Theresa Village Mutual Fire Insurance

| Wis. | Oct 28, 1913

Maeshall, J.

Three questions were considered by counsel for appellant of sufficient.moment to warrant presenting them for decision, supported by argument. We shall therefore limit our determination accordingly.

- Firstly. It is contended, the finding of the jury that respondent was the owner of the subject of the insurance at the time of the loss, is contrary to the evidence. That the proof in respect to the matter presented a jury question is quite plain. Such being the case and the result of the submission having been confirmed by the trial court, a very strong case in favor of appellant is necessary, — a case so strong as to leave no reasonable ground for the verdict to rest upon after giving due effect to the superior advantages which the trial court possessed for reaching a.correct conclusion, — to warrant disturbing it. We are unable to_ discover that such test is satisfied, and so it is considered that the decision on the subject of ownership is a verity.

- "Secondly. It is contended-that the finding in respondent’s favor as to delivery of proofs of loss is contrary to the evidence. The reason for not approving of the first contention applies to the second. Moreover, it appears that appellant took the position from the start that the policy obligation was not in existence at the time of the fire by reason of circumstances rendering operative the forfeiture clause quoted in the statement. That rendered compliance with the retirement as to furnishing proofs of loss unnecessary.

Thirdly. It is contended that there was a change of possession, within the meaning of the quoted clause of the policy, rendering such a circumstance fatal to continuance of the insurance. The finding in favor of respondent on the subject of ownership necessarily involved the nature of possession of the property by the occupant of the building when the fire occurred. In the light of the evidence, if such possession were not incidental to ownership by sucb occupant or some person other than the assured, then it seems clear that it was a mere bolding as bailee, as respondent’s evidence tended to show. the trial court evidently so regarded the matter and we are unable to see any good reason for bolding otherwise. So the question comes down to this: Is the mere leaving of personal property in a building where insured, in the custody of an occupant of such building whose tenancy commenced after the date of the insurance, and without any control over the property otherwise than to bold the same subject to the order of the assured, a change of possession within the meaning of the policy? As an original proposition it does not seem so and no authority has been presented by counsel, or has been discovered by our study of the subject, to the contrary. If control over the property bad been surrendered to the new occupant of the building, disabling the assured for a time from repossessing himself of it, a different situation would be presented and a different result might possibly be reached than the one required by the particular circumstances.

Counsel cite to our attention Cottingham v. Fireman’s F. Ins. Co. 10 Ky. Law Rep. 727, but the authority does not fit the present situation. There the subject of the insurance was real estate. the assured made an executory contract of sale and let the executory vendee into possession, creating such a changed condition that the former was disabled from regaining possession without consent of the latter so long as the occupant complied with bis contract; and the court grounded its decision on such disability. Thus limited, the decision was characterized by a strong dissent upon the ground that any change of possession or occupancy, not increasing the hazard, is not within the forfeiture clause. We do not need to express any opinion on that point for the purposes of this case, or go further than to hold that a mere change of custody without change of location or control is not within the class of changes which such clause was designed to cover.

By the Court. — The judgment is affirmed.