Sherman v. Madison Mutual Insurance

| Wis. | Aug 15, 1875

LyoN, J.

It is not certified that the bill of exceptions contains all of the testimony; hence it must be presumed that the findings of fact are sustained by the proofs, although the testimony preserved in the bill may be insufficient for that purpose. We have only to determine whether such findings support the judgment.

It is objected that the findings fail to show the liability of the defendant, because it does not appear therefrom that the plaintiff gave notice of the additional insurance as required by the terms of the policies in suit. But it appears from such findings that the additional insurance was obtained at the time those policies were issued, and was not thereafter increased; that the defendant (through its agent) knew the fact at the time; and that, having such knowledge, the defendant paid a portion of the plaintiff’s loss. These are verities in the case; and we think they fully sustain the validity of the policies.

It only remains to determine whether the county court correctly adjusted the plaintiff’s loss. The adjustment is contained in the tenth finding of fact, although such finding is substantially a conclusion of law, and must be treated as such.'

The live stock destroyed exceeded in value the amount of the risk taken thereon by the defendant, and, but for the other insurance thereon, the defendant would be liable, to pay the whole risk. The clause iu the policies which reduces such liability, is as follows: “ Iu all cases of other insurance upon the property, whether prior or subsequent to the date of this policy, in case of loss or damage by fire, the insured shall not be entitled to demand or recover on this policy any greater portion of the loss or damage sustained than the amount hereby insured bears to the whole amount insured on said property.” The clause itself furnishes the rule of adjustment in reasonably plain terms, and there should not be much difficulty in the application of the rule to particular cases. Where there are several risks upon the same property, given the amount of each and of the loss, it is an easy process to apportion the loss to the several risks’.

It is said on behalf of the defendant, that the aggregate of insurance on the live stock was $4,833-J and the loss $2,336; and that the amount of defendant’s liability is a mere problem in proportion, which may be stated and solved thus: 4,833-§-: 1,500:: 2,336:725. This process makes the defendant liable only for the sum which it voluntarily paid before the action was commenced, and, if correct, defeats 'the action. But is it correct? The plaintiff is entitled to full indemnity for his loss; that is, he is entitled to receive from the three companies' who insured his live stock, $2,336. That is a right which he has paid for, and has not surrendered or stipulated away. It is entirely clear that the liability of the North Missouri company (stated in round numbers) is only $288, and that of the Continental but $616. So the formula given on behalf of the defendant falls short of full indemnity to the plaintiff, over $700. Hence, it is incorrect; and the error in it is very apparent.

It is true the plaintiff had insurance to the amount of $4,-833J on his steers, and also on his bull valued at $500, and to that extent the above formula is entirely applicable. But he had not that amount of insurance on the residue of the value of his bull. On such residue the North Missouri had no risk whatever; the Continental bad a risk limited by its contract with the plaintiff to $500 on the bull, which left only $327-J on the residue of his value over $500; and the defendant, after deducting its proportion of the loss on the steers and on the bull valued at $500 (being $260) had a risk of $1,240 on such residue. So, instead of having an insurance of $4,838-i-on $1,500 of the value of his bull, the plaintiff had only $1,5671- insurance thereon. Suppose, instead of losing one bull worth $2,000, the plaintiff had lost two bulls, one worth $500 and the other $1,500; and suppose, also, that the North Missouri policy did not include the latter, and that the liability of the Continental on both bulls was limited to $500: the rule for adjusting the loss between the three companies would be perfectly plain. They-would pay pro rata for the steers and the $500 bull. The Continental would pay $327-§- of the value of the other bull, and the defendant would be liable for the balance thereof, being $1,172-^-.

We think the ease supposed and the one under consideration are identical in principle and results, and that the learned county judge correctly adjusted the liability of the defendant for the plaintiff’s loss.

We construe the contract before us and adjust and determine the liability of the defendant, in the light of legal principles as we understand them, without resorting to the opinion of experts; yet we use their computations precisely as a court may use a computation of the amount due on a promissory note, verified by a witness on the stand. It is unnecessary, therefore, to determine whether the rule of adjustment in this or any other case may be proved by the testimony of experts.

By the Court. — Judgment affirmed.