Northwestern Mutual Life Insurance v. Germania Fire Insurance

40 Wis. 446 | Wis. | 1876

Lyon, J.

I. It is argued by the learned counsel for the defendant company, that the clause in the policy in suit which provides that the loss, if any, shall be payable to the “ Northwestern Life Insurance Co." and another, fails to confer upon the plaintiff any right to maintain an action on the policy, or any interest therein, because its name is “ The Northwestern Mutual Life Ins. Co.” The position is exceedingly technical, and we think not well taken. There is not the slightest doubt that the parties to the policy inserted the clause for the benefit of the plaintiff. The omission of the word Mutual is merely a defective statement (not a wrong one) of the legal name and style of the plaintiff. It is scarcely a misnomer, and cannot possibly mislead or prejudice any one. See Attorney General v. Railroad Companies, 35 Wis., 556. Besides, the defendant has recognized to some extent the interest of the plaintiff in the policy, by joining with it in an arbitration to determine the amount of the loss caused by the burning of the insured building. There are stipulations in the submission which prevent the same from operating as an estoppel upon the defendant; yet the fact of the submission is not without significance in the determination of the question under consideration.

II. Two breaches of the conditions of the policy by Winans are alleged, either of which, it is insisted, is fatal to a recovery. These are, 1. The depositing of gasoline on the lots on which the insured building stood, and adjacent to such building; and 2. The continued location and use of the gas-generator and blower within less than the prescribed distance from the building.

1. As to tbe first of these alleged breaches, we do not thinlc the policy prohibited the insured from depositing gasoline provided for use in his hotel, in reasonable quantities, on his lots outside of the hotel, or that the parties to the policy intended any such prohibition. The condition is, “No gasoline to be stored on the premises; ” and the more reasonable construction is, that the word premises means the building insured, and not the lots outside thereof on which the building stood. This construction is sustained by authority. May on Insurance, §§ 228 and 243, and cases cited.

Moreover, it is quite doubtful, on the authorities, whether the depositing of gasoline in the building itself, to be' used therein, would be a storing thereof within the prohibition of the policy. Id., § 242 and cases cited. This question, however, is not here determined.

2. The other alleged breach of a condition of the policy will be considered on the hypothesis that the continued location and use of the generator and blower within less than thirty feet of the insured building was a breach of the condition of the policy in that behalf, and that such breach is a complete defense to this action unless the defendant has waived it.

In Webster v. Phœnix Ins. Co., 36 Wis., 67, which was an action on a policy of insurance, the defense was an alleged breach hy the plaintiff of a condition or stipulation in the policy, that if other insurance should be obtained on the insured building without the consent of the defendant company indorsed on the policy there in suit, such policy should be void. Other insurance was so obtained without such consent, and indeed without the knowledge of the defendant. The insured property was destroyed by fire, and with proofs of loss the plaintiff informed the defendant of such additional insurance. After such notice, instead of declaring the policy void for such breach, the defendant objected to the sufficiency of the proofs of loss, and required the plaintiff, under a stip-illation in tbe policy, to furnish full plans and specifications of tlie building insured. The plaintiff furnished these at considerable expense. It was held that the conduct of the defendant, with full knowledge of the facts, was a waiver of its right to insist on a forfeiture of the policy because of such breach. The principle upon which it was so held is stated in the report of that case, and need not be repeated here.

We think that decision rules the present case. True, "Winans was not subjected to great expense in making new proofs of loss. He prepared them himself, instead of employing and paying an attorney or some other person to do so; but it is not perceived how that fact can affect the application of the principle which controlled the decision of Webster v. Ins. Co. In all other material particulars the two cases are alike in principle.

And if the amount of damage sustained by the insured by reason of being required to furnish new proofs, is to be considered in determining the effect of such requirement, "Win-ans sustained substantial damage thereby beyond the mere trouble or expense of preparing such proofs. The insurance money was not payable until sixty days after notice and due proof of the loss; and of course no interest could accrue on the amount of the loss until after the same became due by the terms of the policy. The demand for new proofs postponed the time when such amount became due, and hence deprived the insured of the right to interest thereon for a certain time. It also postponed the right of action on the policy. Had this action been commenced less than sixty days after the new proofs of loss were furnished (the first proofs being defective), it would have been prematurely brought. But had the defendant, on receipt of the first proofs, instead of demanding further proofs, notified "Wmans that the claim would be contested for. the alleged violation of the stipulations of the policy, probably an action on the policy could have been brought at once; certainly it could have been brought at the expiration of sixty days from that time.

The loss of interest and the postponement of the right of action, which resulted or might have resulted from the defendant’s demand for further proofs of loss, are additional circumstances going to show the entire inconsistency between such demand and the claim that the policy was forfeited for breaches of its conditions, and bring the case more clearly within the principle of Webster v. Ins. Co., supra.

III. It is further claimed on behalf of the defendant, that, conceding its liability to the plaintiff on the policy, the latter can only recover the sum which Winans owed it at the time of the trial, and that the judgment, which is for a greater sum, and for the whole sum due on the policy, is erroneous as to the excess. We think the position untenable. When the action was commenced, the whole right of action had been assigned to the plaintiff, whose demand against Winans exceeded the sum due on the policy. At that time, therefore, the plaintiff was entitled absolutely to the whole proceeds of the policy. It is quite immaterial that the debt which Winans owed the plaintiff was paid in part pendente lite, and it would have been equally so had the whole debt been thus paid. In either case the action might proceed to judgment the same as though no such payment had been made. If, because of such payment, other parties became interested in* the proceeds of the policy, that is a matter between them and the plaintiff which does not affect the judgment. B. S., ck. 135, sec. 1.

The questions above considered are believed to be the controlling questions in the case; and as they are resolved adversely to the defendant, the affirmance of the judgment of the circuit court necessarily follows.

By the Cov/rb. — Judgment affirmed.