158 Wis. 550 | Wis. | 1914
Tbe amended complaint claimed damages on accovmt of tbe loss by fire of two horses in a building at 924 Walnut street, Milwaukee. Tbe horses were insured according to tbe written portion of tbe policy, “all while contained in tbe frame brick front barn situated at rear 425 Fifth street, Milwaukee, AVis.”
Sec. 1941 — 43, Stats., being tbe statute form of policy authorized in this state, requires such policy to state that tbe insurer does insure . . . “against all direct loss or damage
A demurrer to this complaint was overruled and the defendant appeals.
It has been field in Noyes v. N. W. Nat. Ins. Co. 64 Wis.
It is noticeable that in Noyes v. N. W. Nat. Ins. Co., supra, and the other cases therein referred to the language as understood by this court in the Noyes Gase was not as restrictive as that .in the instant case.
“There is left to be determined this question of law: In case of insurance of a farm barn and of live stock customarily kept therein when not in use against loss by lire, the lire stock being described as ‘therein, on the farm and from lightning at large/ is risk of loss of the stock by fire while, temporarily and according to custom, off the farm, included in the contract, there being no negative thereof expressly or by necessary inference, other than suggested by the words ‘therein, on the farm/ etc! ? The proposition is ruled in the affirmative, as respondent’s counsel contend and the trial court decided, by Noyes v. N. W. Nat. Ins. Co. 64 Wis. 415, 25 N. W. 419. . . . The rule involved is one of construction. The idea is that the dominant purpose of .the insurance being protection against loss from specified causes it could not be effectuated if the language of the policy restricted liability to loss occurring while the subject of the insurance remained in its customary location when not in use, incidental changes, as matter of common knowledge, being-necessary to the enjoyment of the property in the ordinary way. . . . The rule is particularly applicable to horses because of the fact that the use thereof for any purpose is commonly outside of a barn and because, on a farm, even when not in use they are commonly turned out to pasture.”
As observed in the case last cited, policies of insurance written in this state and conforming substantially to the policy in question in Noyes v. N. W. Nat. Ins. Co., supra, must be considered to have been made with reference to the existing law' of this state as there declared,- which entered into and became a part of such contract. That case remains unshaken. The instant ease, however, presents a different, question. When the contract of insurance is so varied that the words describing the location of the insured chattels are prefaced by the word “while” and followed by the words “and not elsewhere,” so as to read “while- located and contained as described herein and not elsewhere,” does the rule
Upon this question of construction the implication that the property is covered although not in the designated place but elsewhere, arising from the known nature and uses of the property, is negatived by the express words of the policy in the instant case. The law permits a contract of insurance against loss by fire to be limited to loss in a specified building if the parties so agree. Also to be unlimited as to place of loss if the parties so agree. Also to be worded as in Noyes v. N. W. Nat. Ins. Co., supra. Neither is illegal, harsh, or unusual. It is in all such cases a question of the intention of the parties, and the first and most decisive test of the intention of the parties to a written contract is the language employed. If the words “while contained in the frame brick front barn situate at the rear of 425 Fifth street and not elsewhere” are not sufficient, what form of expression would be? The statute form of policy employing these words was adopted after the decision in the Noyes Case, supra, and it seems to reject the words there considered and select a new, more exclusive and emphatic form of expression for the purpose of enabling the parties to get away from the rule of the Noyes Gase if they wish to do so. To hold that they cannot do so by the form of expression used here, but may do so by some form of expression differing in words but identical in meaning, would seem to be a sort of decree of outlawry against these useful and expressive words. We cannot think there is alleged anything which would make the policy enforceable by waiver on the part of the insurer.
By the Court.- — Order reversed, and the cause remanded for further proceedings according to law.