Home Mutual Building & Loan Ass'n v. Northwestern National Insurance
Home Mutual Building & Loan Ass'n v. Northwestern National Insurance
Opinion of the Court
For the purposes of passing upon defendant’s •contentions, it suffices to note the following facts, which were found by the court upon evidence which was in part undisputed and which, in so far as it was in dispute, can reasonably be considered to warrant the court’s findings to the following effect. The dwelling and attached garage building, on which the fire insurance policies in question were issued by defendant to plaintiff, were rented by the owner to Walter T. Lentz, alias, for residence purposes, about twenty-two days before the fire on February 27, 1937. Fie and a woman represented to be his wife entered into occupancy of the premises about
“On the following described property, all situated Cor. Summit & Pelham Parkway, Lot 7 Block 16 Continuation of Bay-side Town of Milwaukee State of Wisconsin. On the two story shingle roof brick veneered building, including foundations, plumbing, electric wiring,... also all permanent fixtures belonging to- and constituting a part of said building; occupied and to be occupied only for dwelling purposes—
and that on the second page of each of the policies are printed the “Stipulations and Conditions of Policy,” with the numbered lines of the “Standard Fire Insurance Policy of the State of Wisconsin” in the words and manner as set forth in sec. 203.01, Stats., and that among the same are the following, to wit:
“Unless otherwise provided by agreement in writing added hereto this company shall not be liable for loss or damage occurring
“Increase of (a) while the hazard is increased by any Hasard means within the control or knowledge of the insured; . . .
“Explosion (f) by explosion, unless fire ensue, and, in that event, for loss or damage by fire only.”
Upon the facts found the court concluded, in so far as material on this appeal, that when defendant issued the policies it regarded any future occupancy of the insured premises for purposes other than dwelling purposes as increasing the hazard, but that such resulting increase of hazard was not intended to, and did not, work a forfeiture of the coverage nor suspend such coverage; that the words in the policies which refer to- the premises as “occupied and to be occupied only for dwelling purposes,” and which defendant inserted in typewriting in the rider attached to each policy at the place designated therein as “(Space for description of property),” operate merely as describing the use of the premises at the time of the issuance of the policy and the intended future use thereof, and do not fix or limit the extent of the application of the insurance unless they are construed to refer merely to increase of hazard,'and are by such construction reconciled with the “increase of hazard” clause and the provision insuring plaintiff “against all direct loss and damage by fire.;” that the increase of hazard resulting from the installation of the alcohol still was not within the control or knowledge of plaintiff; and that neither such increase in hazard, nor the use or conversion of the building to purposes other than dwelling purposes only, operated to release the defendant, as insurer, from liability for the loss and damage in question. The court further concluded that since the major explosion did not precede the fire, defendant is not entitled to any deduction for explosion damage, but is liable for plaintiff’s total loss and
Defendant contends (1) that under the contract between the parties “the policies limit coverage to the time and during the period when the insured building is ‘occupied and to be occupied only for dwelling purposes,’ ” and that this “language as thus used is not descriptive merely;” (2) that “the policy provisions defining and limiting the scope of the insurance and the coverage afforded are not inconsistent with or prohibited by the statutes, nor ... in conflict with any of the conditions and provisions of the statutory fire insurance policy;” (3) and that “the admitted usage of the premises for illicit distillery purposes did not necessarily void the policies, but did suspend the coverage thereunder during the period of such usage.”
None of these contentions can be sustained. The phrase “occupied and to be occupied only for dwelling purposes” at the end of the last sentence in the description of the insured property, which is in the rider attached to each policy at the blank space therein designated as “(Space for description of property),” constitutes and operates only as additional descriptive matter in connection with and but supplemental to the preceding descriptive words and phrases stating the location of all and the nature of some parts of the property insured. No term or provision is used in connection with any of that descriptive matter by reason of which any portion thereof, including the words “occupied and to be occupied only for dwelling purposes,” can be held to operate as a limitation on the coverage afforded by the policy, or to constitute a condition subsequent or promissory warranty in respect'to the use to which the insured intends to put the premises. It is not questioned by the defendant that the words “occupied . .. only for dwelling purposes,” which are in the phrase under consideration, are merely descriptive of the property insured.
There are conflicts in decisions in other jurisdictions construing somewhat similarly worded phrases. The decisions in Ragley v. Northwestern Nat. Ins. Co. 151 Wash. 545, 276 Pac. 537, and Fayle v. Camden Fire Ins. Asso. 85 Mont. 248, 278 Pac. 509, are in accord with the conclusions stated above. On the other hand, the conclusion that such phrases operate as limitations on the coverage does not seem to have been reached where the wording of the phrase was identical with the wording involved in this action, or of substantially the same import as that wording in the respects which we conclude warrant the construction that the phrase does not operate as a limitation on the coverage; and where there was applicable the rule applied in Joslin v. National Reserve Ins. Co. 201 Wis. 506, 230 N. W. 711, that in order to defeat
Defendant also contends that there is no credible evidence to sustain the court’s finding that a hostile fire preceded and caused the explosion; and in this connection defendant claims that the burden of proof was upon plaintiff to establish the existence of an antecedent hostile fire. In relation to these issues it must be noted, in addition to the facts stated above, that no witness, who' testified, was nearer to the premises than four blocks when he first saw the fire or heard the explosion, and none of them saw or took notice of events preceding the explosion; but that there was evidence which, although it was largely circumstantial, warranted the court in finding the following facts: The man, woman, and child, ■who occupied the premises up to February 27, 1937, were in the dwelling when the fire began and left hurriedly, leaving the furniture and other personal belongings behind them when it became apparent that the fire was out of control, and they could no longer remain safely in the building, and in departing so hurriedly they failed to take the hastily wrapped shaving outfit, and dropped the child’s shoes in the garage. But none of them appears to have been seriously injured, and there were no blood stains or other evidences of injury on the premises. They had made a “clean get-away” within a few minutes after the explosion occurred, when witnesses began to arrive. The explosion occurred on both the second and first floors of the house, as is shown by the fact that it blew out practically all the windows, including the sash, on both floors. Some roof boards and part of a gable with a piece of sash attached, which were blown off the house and found some distance from it, were partly burned, although
By the Court. — Judgment affirmed.
Reference
- Full Case Name
- Home Mutual Building & Loan Association v. Northwestern National Insurance Company
- Status
- Published