98 Wis. 257 | Wis. | 1898
The questions presented on these appeals are: (1) Were the policies void because of a breach of the condition in respect to the title of the assured being sole and unconditional? (2) If the condition in that regard was waived, did the policies cover the entire building, or only the interest of the plaintiffs? (3) What is the amount for which the defendants were liable under the policies ? (4) Has such amount been diminished by the completion of the building by the contractor under his obligation so to do? (5) Hid the court err in not limiting the attorney’s fees taxed and included in each judgment to $20? These questions will be considered in their order,
1. RTo question is raised but that H. B. Hobbins, who took the application for the insurance, received the premiums, and delivered the policies, was the agent of defendants within
2. The question of whether the whole building was insured, or only the interest of plaintiffs, is practically answered by what has preceded. The claim that the intention was to insure only that part of the building which had been accepted, that is, the foundation, is without any evidence or a single circumstance in the case to support it, except the testimony of the agent Hobbins that he was not requested, and did not intend, to insure the builder’s interest. ’That, was his conclusion, which counts for nothing in the case as against what was actually said and done.' He testified that the plaintiffs applied for $20,000 of insurance; that he influenced them to make it $25,000; that he inquired who the contractor was, and on being informed in that regard said he did not know him and would advise plaintiffs to insure the building then; that his language was: “ I told them I would bind that amount of insurance on the building in the condition it then was;” that thereupon the whole matter was.left to him, and he placed the $15,000 of insurance and agreed to place $10,000 additional when the building was nearer completion. In view of that evidence, the fact stands out prominently and beyond reasonable dispute that Hob-bins and plaintiffs intended to insure the entire building at a valuation of $15,000 as it stood when the policies were issued.
8. On the question of whether the building was wholly destroyed, the evidence appears to be quite as conclusive as on the other questions discussed. It was practically annihilated down to the foundation, and that was so injured that about half of the original cost was required to put it in shape for use again. A considerable portion of it had to be removed down to the footing stones, and the balance required extensive repairs. As a matter of law that was a total destruction of the building within the meaning of sec. 1943,
In May, Ins. § 421a, it is said that ‘ total loss exists when the building has lost its identity as such, so that it cannot be designated as a building, though some part of it may yet ■be standing.'" In Hamburg-Bremen F. Ins. Co. v. Garlington, 66 Tex. 103, it was said, in effect, that total loss does not mean an absolute extinction of the building; that the test is whether the building has lost its identity and specific character, so that it can be no longer called a building. To the same effect are Williams v. Hartford Ins. Oo. 54 Cal. 450, Beach, Ins. § 1291, and Wood, Fire Ins. § 107. In Oshkosh Packing & Provision Co. v. Mercantile Ins. Co. 31 Fed. Rep. 200, the term “ wholly destroyed,” as used in our statute, was considered and construed as not meaning more than such destruction of the building as that, though some part .still remains standing, it cannot be longer designated' as a building. Evidently, from the report of the case, some part ■of the building covered by the policy under consideration -was left standing after the fire; yet, as there was no con
There are authorities to the effect that if there is any part of the building left, worth more in place than the cost of removing it, the destruction is not complete within the meaning of valued policy statutes. In Ostrander’s work on Eire Insurance [2d ed., § 310] and in an article on the subject found in 33 Cent. L. J. 319, written by a prominent member of the bar of this' court, it is contended that such is the correct construction of our statute, and that this court has impliedly, if not directly, so held, and referred the words “ totally destroyed ” to the value of the thing insured instead of the thing itself. It is not considered that there is any legitimate warrant for such view in anything said by the court in its published opinions. In Harriman v. Queen Ins. Co. 49 Wis. 71, where the building was destroyed down to the foundation, and that was injured so as not to be in a suitable condition for use in a new building, the court said, the destruction, within the meaning of the statute, was ■total, but declined to lay down any rule applicable to other cases, and did not place the decision on the theory that the destruction contemplated by the statute was solely that of value. In Seyk v. Hillers' Nat. Ins. Co. 74 Wis. 67, while it was stated that there was no part of the building left standing, of any value, the decision that the destruction was ;total was placed .on the ground that the identity of the thing insured was so far annihilated that it no longer existed as a building. The authority referred to and approved was Wood, Fire Ins., supra, to which one of the cases cited is Harriman w. Queen Ins. Co., supra. The text writer says: “ Loss is total within the meaning of the term when the identity and specific character of the thing insured is destroyed, although there is not an absolute extinction of the parts.” As best illustrating the rule, Judah v. Randal, 2 Caines, Cas. 324,
It follows from the foregoing that the evidence in this case establishes conclusively a case of total destruction of the building within the meaning of our statute; hence that the amount named in the policies of insurance correctly measured the plaintiffs’ damages at the time of the fire.
4. But it is said the policies of insurance 'were contracts of indemnity, and as the builder, McAlpine, -was bound to reconstruct the building after the fire, and did so, plaintiffs were fully indemnified except as to the ¡foundation, which was accepted before the policies were issued, and cannot recover in excess of the loss for which indemnity has not been received. The weakness of this contention is threefold:
(a) The mere fact that the building was restored by the contractor does not show that such restoration was pursuant to the obligation of the building contract, independent of any claim for indemnity by the contractor against the
(b) If the plaintiffs were indemnified by their contractor under his obligation to complete the building, and the defendants desired to rely upon that fact to reduce the damages otherwise recoverable under the policies, they should have set up such facts in the answers as a defense, and established them by evidence on the trial. No such defense appears to have been so pleaded or established, so the policies must stand unaffected by any claim for a reduction of the recovery thereon by reason of any claim that the plaintiffs have been otherwise indemnified.
(c) It being conceded that the plaintiffs had an insurable interest, and it having been decided that the condition in the policies in respect to sole and unconditional ownership was waived, and that the undisputed evidence makes a case of 'total destruction of the property insured, calling for payment of the face value of the policies as liquidated damages, that amount cannot be diminished by the fact alone that some other person, whom the plaintiffs had a right to represent, also had an interest in the building, even though such
5. Plaintiffs claimed the right to recover $20 attorney’s fees, under oh. 235, Laws of 1893, and $25 under the general fee bill as well, against éach defendant, and prevailed on such claim. That is assigned as error. Such chapter pro, vides that several insurance companies, interested in the same loss, may be joined as defendants; that in case of a recover}' against them, separate verdicts and judgments shall be rendered; and that there shall be included in each such judgment an attorney’s fee of $20. In a proper case for such joinder of defendants, if separate actions are brought, they may be consolidated on motion, under sec. 2792, R. S. Gross v. Milwaukee Mechanics' Ins. Co. 92 Wis. 656. When so consolidated, the provisions of the act of 1893 as to costs apply, the same as if one action had been brought against all in the first instance, as permitted by law. It is considered that such provisions are exclusive and limit the attorney’s fee to $20 against each defendant, and that the ruling of the trial court to the contrary was error.
It follows from the foregoing that each of the insurance companies is liable to the plaintiffs for the full amount mentioned in its contract of insurance, and that the trial court should have directed verdicts accordingly, at the close of the evidence, on plaintiffs’ motion therefor. Rut, in accord-
By the Gouri.— On plaintiffs’ appeals the judgments are-reversed as to damages, and on defendants’ appeals such judgments are reversed as to costs. Full costs are allowed to plaintiffs in this court on their appeals, except that only one fourth of the costs for printing their case and brief shall be taxed on each appeal. Defendants are allowed clerk’s fees on their respective appeals, but no other costs.