McFetridge v. American Fire Insurance, 90 Wis. 138

McFetridge v. American Fire Insurance

90 Wis. 138 | Wis. | 1895

Cassoday, J.

1. Upon the rendition of the special verdict, counsel for the defendant moved to set aside the several answers of the jury and the court to questions 2, 3, 4, 5, 9, and 10 in the special verdict, mentioned in the foregoing statement, and for judgment in favor of the defendant upon the answers of the court to questions 1, 7, and 8 of the special verdict. That motion was properly denied for reasons given by Mr. Justice Pinney in Sheehy v. Duffy, 89 Wis. 6.

2. It is undisputed that at the time of making the contract of insurance the plaintiff was in partnership with Hiram Scott and William H. Smith, doing business under the firm natne of the American Ice Company, and as such owned the ice in question. Nevertheless, the policy was taken in the name of the plaintiff alone. There is evidence tending to show that the agent or broker of the defendant who made the contract knew of sucji partnership and ownership at the time the policy was issued, and waived the condition therein respecting the same; but there is also evidence the other way, and the question of such waiver is left undetermined by the verdict, and hence the verdict is defective. Sherman v. Menominee R. L. Co. 77 Wis. 14; McFetridge v. Phenix Ins. Co. 84 Wis. 200. The second finding is merely to the effect that the plaintiff did not represent that he was the sole owner.

3. The policy expressly authorized additional insurance on the property insured, and provided that in case of other insurance thereon the defendant should only be liable for such ratable proportion of the loss or damage as the amount insured by the defendant should bear to the whole amount *143insured thereon, without reference to the dates of different policies or the solvency of the underwriters. It is true the defendant has not pleaded this provision of the policy, but the question here presented is whether the plaintiff is entitled to recover the whole amount of his loss from the defendant, under the policy and the admitted facts in the case. It appears from the proofs of loss furnished by the plaintiff and put in evidence by him that, at the time of tbe fire, the plaintiff held policies of insurance upon the same property in three other companies,— two for $1,000 each, and one for $2,000. Such being the facts admitted-by the plaintiff, we must hold that the defendant is in no event liable for any more than one third the amount of such loss.

4. By the seventh and eighth findings of the court in the special verdict, it is found, in effect, that after the making of the policy and before the fire a portion of the ice covered'’ by the insurance was removed from the icehouse and sold by the plaintiff. The policy not only covered ice in the ice-house, but in the cars near thereto. It provides, in effect, that the sale or transfer of the whole or a part of the ice, without the consent of the defendant indorsed thereon, should avoid the policy. We have no doubt that such condition could be waived without a written indorsement thereon. Renier v. Dwelling House Ins. Co. 74 Wis. 89; Stanhilber v. Mut. M. Ins. Co. 76 Wis. 285. Whether there was such waiver is not determined by the special verdict. The answer alleges-, in effect, that, at the time of making the contract of insurance, it was understood and agreed that when shipments of ice were made the plaintiff should notify the defendant, and the amount of insurance should b.e reduced accordingly; that shipments had been made without giving such notice; that the defendant ascertained the fact before the fire, and attempted to reduce the policy, but failed, through the negligence of the plaintiff. This would indicate a waiver of any forfeiture by such mere shipments *144of ice; and yet the verdict finds the removal, sale, and transfer of a portion of the ice, without determining the question of waiver.

The facts in this case are not very complicated, but have been greatly obscured by the manner in which they have been presented. The appellant’s brief is unnecessarily prolix,— covering eighty-three printed pages. It might have been limited to one fourth or one fifth of the amount, and still have been more helpful.

By the Cowrt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial. In taxing costs, the appellant will only be allowed for thirty pages of brief.