Noyes v. Northwestern National Insurance, 64 Wis. 415

64 Wis. 415 | Wis. | 1885

Lyon, J.

The decision of this case turns entirely upon the effect of the words “ contained in,” as used in the policy to specify the location of the insured property. In a policy upon personal property, which, from its character and ordinary use, is kept continuously in one place, as a stock of merchandise, machinery in a building, household furniture, or goods stored, the rule undoubtedly is that the location of the property designated in the policy is an essential element of the risk, and usually a continuing warranty. In such a case the policy covers the goods only so long as they remain in the designated place; and if they are destro}red elsewhere, the insurer is not liable for the loss.

It is maintained by the plaintiff that the rule is not applicable to a case where the insured property is of such a character that its temporary removal or absence from the specified place is necessarily incident to its use and enjoyment, and such use may be presumed to have been in contemplation of the parties when they made the contract of insurance. It is also claimed that in such a case the location of the property is specified in the policy merely to designate the accustomed place of deposit when the property is not absent therefrom in the course of its ordinary use; and if the property be burned when so absent (the place of deposit remaining unchanged), the insurer is liable for the loss.

This is such a case. The dolman was a garment for outdoor wear, and necessarily would be chiefly used away from the designated dwelling-house. It would or might be necessary from time to time to send it to a furrier for repairs; and it was liable to be burned when so absent from the place of deposit. It must be presumed that the parties entered into the- contract of insurance in contemplation of these incidents, for they are matters of common knowledge.

Under these circumstances, we think the rule contended .for by the plaintiff is eminently reasonable and just when applied to this case. It is abundantly sustained by the adjudications of courts of high authority, supported by arguments which are entirely satisfactory to us. We can only refer briefly to some of the cases.

In Peterson v. Mississippi Valley Ins. Co. 24 Iowa, 494, the policy insured, with other property, “ seven horses, . . . situated section 22,” etc. The policy (like the one in suit) contained the usual stipulation that if the risk should be increased by any means, without the assent of ■the insurer, the policy should become void. The assured, a farmer, while hauling his grain to market with two of the horses, put up for the night at a hotel, distant from section 22. During the night the hotel barn in which the horses were stabled was destroyed by fire, and one of the ■insured horses was burned to death. Held, that the risk was not limited to the use of the horses on section 22, but extended to the usual and ordinary use of them elsewhere, and that the company was liable for the loss of the horse.

Mills v. Farmers’ Ins. Co. 37 Iowa, 400, was a policy injuring “live-stock on premises situated sec. Y, Y6, 2Y.” A horse owned by the insured, and usually kept on the designated premises, was killed by lightning at a place six miles distant from such premises, when the owner was driving him to mill. Held, that the insurer was liable.

In McCluer v. Girard F. & M. Ins. Co. 43 Iowa, 349, the policy covered a phaeton “ contained in a frame barn,” and the vehicle was destroyed by fire while at a carriage shop undergoing repairs, and where it was subject to an increased risk. The insurance company was held liable for the loss.

In Longueville v. Western Assurcunee Co. 51 Iowa, 553, the policy covered “ family wearing apparel contained in two-story frame dwelling on lot 6,” etc. While riding in a . sleigh along a street certain wearing apparel of the assured was burned. Held, the loss was recoverable under the . policy.

In Everett v. Continental Ins. Co. 21 Minn. 76, the property insured was a threshing-machine “ stored in barn on sec. 36, T. 23, E. 28, owned and insured by L. L. Chaffin.” The machine was burned when standing in a field on that section. The company was held liable. Judge Bebey, delivering the opinion of the court, said: “But whatever might have been the purpose of the location of the machine in tbe application and policy, there is no ground whatever for contending that it was, in letter or in spirit, a promissory stipulation on the part of the insured, or a condition of in* surance on the part of the insurer, that this location should remain unchanged, or, if changed, that while changed the insurance should cease or be suspended. Smith v. Mechanics’ & Traders' Ins. Co. 32 N. Y. 399, and cases cited; Blood v. Howard Fire Ins. Co. 12 Cush. 472; Fland. Ins. 241, 255, 269, 485.”

Holbrook v. St. Paul F. & M. Ins. Co. 25 Minn. 229, is a case in which mules were insured as being all contained in a certain barn. For the purpose of plowing, and also of repairing such barn, they were removed to another barn on another section, where the loss occurred. The company was held liable under the policy for the loss. There is a valuable note to this case by the editor of the Insurance Law Journal (8 Ins. Law J. 793), in which many cases bearing upon this question are cited and commented upon. London & Lancashire Fire Ins. Co. v. Graves (Superior Court Ky.), 12 Ins. Law J. 308, is very closely in point. Buggies were insured as “contained in” a certain livery-stable. They were burned while in a carriage factory for l’epairs. Held; that the absence of the buggies from the designated place of deposit for repairs was an incident of their use and permitted by the policy, and that the insurer was liable.

The same doctrine is recognized by the supreme court of Rhode Island in Lyons v. Providence Washington Ins. Co. 12 Ins. Law J. 188; but in that case there was a permanent removal of the insured property from the place designated in the policy, and for that reason the insurer was relieved from liability.

The question we are considering is now first presented to this court. It is doubtless true that there is conflict in the cases in which it has been considered. It is our duty to choose between these conflicting lines of adjudication, and to adopt tbe doctrine which best commends itself to our judgment. We discharge this duty when we hold (as we do) that the words in the policy, “ contained in the two-'story frame dwelling-house,” etc., when applied to the dol-man in question, do not constitute a continuing warranty that the same shall always be kept in such dwelling, which would relieve the insurer from liability should it be burned elsewhere; but they are only a warranty that the place designated shall be the usual place of deposit when the dol-man should not be in customary use elsewhere, and if burned when in such use it is still covered by the policy, and the insurer is liable. Also that it was a reasonable and proper use of the dolman to send it to the furrier for repairs, and it is immaterial that the risk of loss was greater in the furrier’s store than in the dwelling-house designated in the policy. The learned county judge so held, and the judgment is in strict accord with his conclusions of law.

By the OouH.— Judgment affirmed.