Worachek v. New Denmark Mutual Home Fire Insurance

102 Wis. 88 | Wis. | 1899

Marshall, J.

The sole question for decision on this appeal is, Where a policy of insurance against loss by fire covers a building and personal property located therein, the premium being distributed part to the realty and part to the personalty, and the building is totally destroyed by fire and the personal property injured or destroyed as well, and the policy provides that any false swearing by the insured in relation to the quantity, quality, description, or valúe of the property destroyed or damaged shall forfeit all claim under such policy and bar all remedies thereon, and there is such false fswearing as to the personalty, can the assured nevertheless recover as to the realty? The learned trial court decided that in the affirmative on the strength, evidently, of Loomis v. Rockford Ins. Co. 77 Wis. 87. There the court held that a change in the title to one of several buildings, covered by an insurance policy, such buildings being situated .some distance from each other, does not render the policy void as to the other buildings because of a clause in the policy to the effect that any change of the title to the insured property without consent of the company shall render the policy void. Following decisions elsewhere, and construing the language of the policy strictly against the insurance company, a conclusion was satisfactorily reached that it was within the reasonable meaning of the language of the policy to say that the contract of insurance was divisible according to the distinct risks covered by it. The court, however, did not go so far as to hold that a building and its contents could be considered distinct risks. On the contrary, the decision was expressly limited to cases where the property insured is so located that the risks assumed are separate and distinct, the situation being such that the destruction of one portion of the property will not be liable to injure or destroy the other. The previous decisions of this court, Hinman v. Hartford F. Ins. Co. 36 Wis. 159, and Schumitsch v. Am. Ins. Co. 48 Wis. 26, to the effect that insurance on a building and its contents is indivisible, were expressly approved. The subject was again referred to in Burr v. German Ins. Co. 84 Wis. 76, and again in Carey v. German Am. Ins. Co. 84 Wis. 80, the court saying that insurance on a building and contents, with the risk distributed to the different species of property, is a single indivisible contract, and, under a general forfeiture clause, a circumstance barring a recovery for a loss on part of the property will bar a recovery for any. These decisibns are decisive of the question raised here, and are in accordance with numerous authorities elsewhere, none of which need be referred to, as the cases in our own court are amply clear and all one way.

The fact that false swearing as to a building totally destroyed is not prejudicial to the insurance company, and so does not work a forfeiture under the rule stated in F. Dohmen Co. v. Manufacturers’ & B. F. Ins. Co. 96 Wis. 57, to the effect that false swearing must be such as will be liable to work an injury to the insurance company, in order to make the contract for forfeiture operative, does not apply here. It is not necessary that injury by false swearing actually take place. It is sufficient if there be false swearing to the actual prejudice of the insurance company, or which is liable to work that way! The contract of insurance being single, if any part of it is such that false swearing in reference to it would be liable to injure the company, and there be such, according to the plain language of the contract under consideration all claims by virtue of it are forfeited and all remedies upon it barred. The court cannot, by judicial construction, work any exception into such plain language.

By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment for the defendant.

BaedeeN, J., took no part.