Pool v. Milwaukee Mechanics' Insurance, 91 Wis. 530

Pool v. Milwaukee Mechanics' Insurance

91 Wis. 530 | Wis. | 1895

Cassoday, C. J.

1. Counsel contend that the court should have directed a verdict in favor of the defendant, by reason of other insurance having been put upon the property without the written consent of the defendant. As indicated in the foregoing statement, by certain clauses of the policy the same was to be void if the insured thereafter procured any other contract of insurance, unless otherwise provided by agreement indorsed thereon or added thereto, and it was further provided that the defendant was not to be liable for a greater proportion of any loss than the amount of the policy herein should bear to the whole insurance upon the property ; that the policy was made and accepted subject to the stipulations and conditions therein, “together with such other provisions, agreements, or conditions ” as might be indorsed thereon or added thereto; that the provisions or conditions of the policy could only be waived by agreement in writing indorsed thereon or added thereto; and that “ any privilege or permission affecting the insurance under this policy ” must be so written thereon or attached thereto. There was a written statement, bearing even date with the policy and attached thereto as forming a part thereof, signed by the defendant’s agent, to the effect that “ if, at the time of the fire, the whole amount of insurance on the property covered by this policy be less than eighty per cent, of the actual cash value thereof,” then the defendant should, “ in case of loss or damage, be liable for only such proportion of such loss or damage as the amount insured by this policy shall bear to the said eighty per cent, of the actual cash value of such property.” While this writing so attached does not expressly authorize such additional insurance without such consent, yet it does by necessary implication authorize the same and make it an object for the plaintiff to *539take additional insurance until the eighty per cent, of the actual cash, value of the property should be obtained; and in case it should be obtained, as it in fact- was, then the defendant was, in case of 'total loss, to pay the full face of the policy. Especially should this be so construed, since the defendant’s agent in making this insurance contract himself placed, or procured the placing of, the whole of such additional insurance, to the amount in all, including this policy, of $50,000, and the loss or damage, as found by the jury, was more than $50,000. We must hol'd that the policy was not void' by reason of such additional insurance.

2. Counsel contend that the court should have directed a verdict in favor of- the defendant, for the reason that the plaintiff increased the hazard by means within his knowledge and control, contrary to a provision of the policy quoted in the statement; that is to say, by using in .his store certain inflammable sulphur candles, known as the “Johnson Fumigators,” from which the fire originated. There is no claim that, after the making of the contract of insurance, there was any change in the condition or locality of any of the property insured. There seems to have been a necessity of fumigating the plaintiff’s store and' the goods contained therein and covered by the insurance. The fumigators employed seem to have been adapted to that end. The only ground for controversy in respect to them, it would seem, is as to whether their use increased the hazard by means within the control or knowledge of the plaintiff, within the mean- • ing of the policy. That was necessarily a question of fact, to be determined by the jury from the evidence. Copp v. German Am. Ins. Co. 51 Wis. 637; Spensley v. Lancashire Ins. Co. 54 Wis. 433; Kircher v. Milwaukee M. M. Ins. Co. 74 Wis. 470. The trial court expressly refused to submit to the jury these questions: “ Did the use of fumigators by plaintiff, as used, increase the hazard? Was such use the proximate cause of the fire?” The first of these questions *540or its equivalent should, as we think, have been submitted, and such refusal to submit them was error. We do not think the fourth question submitted was equivalent to such questions or either of them. It was this: “Was said fire caused by the fault or want of ordinary care on the part of the plaintiff?” This merely submitted to the jury the question of the plaintiff’s negligence or fault. Upon that question the court charged the jury to' the effect that the plaintiff .was only required to use ordinary care, or such care as men of ordinary care ordinarily use,— not extraordinary care and prudence; that the burden of proof rested on the defendant to show, by a preponderance of evidence, that the plaintiff did not use ordinary care. Counsel for the plaintiff is undoubtedly right in claiming that the mere negligence of the assured does not avoid a policy. “ In the absence of fraud or design, there can be no question but that a fire insurance company is not relieved from liability on its policy by reason of loss by fire through the negligence of the assured or his servants.” Karow v. Continental Ins. Co. 57 Wis. 62, 46 Am. Eep. 20, and cases there cited. Thus it appears that the principal question submitted to the jury was immaterial, and that the real question in controversy, and litigated, was not submitted to the jury in any form, unless the word “ fault ” in the question may be said to have oovered it. Assuming that it did, still the verdict would be defective, since the question was in the alternative, — “ fault or want of ordinary care;” and hence the mere negative answer of the jury leaves it impossible to tell whether the jury found the plaintiff free from any “ want of ordinary oare ” or some other “fault.” The plaintiff accepted the policy with the condition that it should be void if he. increased the hazard by any means within his control or knowledge. That was the contract, and the question whether he did so increase the hazard was a question of fact for the jury.

8. Counsel contend, in effect, that, even if the policy was *541forfeited by reason of such increase of hazard, yet that the defendant waived snch forfeiture by reason of its adjuster, with full knowledge of the use of such fumigators and the circumstances of the fire, having ordered the goods saved from the fire to be moved to a place of safety and an inventory thereof taken; and, after such inventory was partially taken, at an expense to the plaintiff of about $200, the defendant’s adjuster and the adjusters of the other companies represented in the loss sold the goods so saved to the plaintiff for $10,000, and on May 10,1895, it was agreed in writing, by and between the plaintiff and such other companies, that $10,000 was accepted and agreed upon as the cash value of the goods saved, and that the same should be deducted from the amount of the sound cash value of said stock at the time of the fire, when the same should be ascertained. As indicated in the foregoing statement, the policy required the plaintiff, as often as requested, to exhibit to the defendant all that remained of the property, and to submit to an examination under oath, and to produce books, bills, invoices, etc., and, in case of disagreement as to the amount of the loss, to have the same appraised as therein prescribed; and that the defendant should not be held to have waived any provision or condition of the policy, or any forfeiture thereof, by reason of any requirement, act, or proceeding on its part relating to such appraisal or examination. Of course, the defendant was at liberty to do all the things which, by the terms of the policy, it was expressly authorized to do without such waiver. Whether, in the instant case, it did more and, inconsistent with the terms of the policy and a defense on the ground of such forfeiture, put the plaintiff to expense or disadvantage, was, under the evidence, a question of fact for the jury, and not of law. As there must be a new trial, we deem it unnecessary to say more.

By the OourtThe judgment of the circuit court is reversed, and the cause is remanded for a new trial.