Bellman v. Home Insurance Co.

189 N.W. 1028, 178 Wis. 349, 27 A.L.R. 944, 1922 Wisc. LEXIS 31

• Court: Wisconsin Supreme Court
• Decided: October 10, 1922
• Status: Published

Opinion

Owen, J.

It is fundamental that an insured who' deliberately sets fire to the insured property cannot recover on a policy of fire insurance. To permit a recovery under such circumstances would reward crime and shock the most fundamental notions of justice. To permit a recovery by either the partnership, or. the unoffending partner upon a policy of insurance issued to a partnership insuring partnership property where one of the partners has wilfully fired the insured property, is likewise repugnant to an intuitive sense of justice. Much discussion and ingenious argument is indulged by plaintiffs’ counsel, however, to establish the conclusion that the unoffending partner should not be held responsible for the wilful act of his guilty associate, and that not only the innocent partner but the partnership itself should be permitted to recover under such circumstances. No attempt will be made to follow or answer, the various arguments made by plaintiffs’ counsel to justify such a result. We think that a reference to a few fundamental principles will be sufficient to demonstrate that these cases were correctly ^disposed of by the trial court.

There is some conflict in the authorities as to whether contracts of a partnership constitute joint and several obligations of the partners. But it has always been held that they are at least joint. That was the rule at common law; and while some modern decisions hold that they are joint and several, we are not now concerned with the latter question. There can be no doubt that these policies of insurance constituted the joint obligations of the individual 'members of the partnership'. Rowley, Partnership, § 495 et seq. Without considering whether the law implies an agreement on the part of the insured that he will not set fire to the insured property, it is expressly provided in the policies that the companies should “not be liable for loss or damage caused directly or indirectly by . . . neglect of the insured to use all reasonable means to save and preserve the property at and after a fire.” This was a joint obligation on the part of the partners. Each agreed that not only he, but that also his joint obligor, the other partner, would use “all reasonable means to save and preserve the property at and after a fire.” It requires no argument to demonstrate that one who wilfully sets fire to property and leaves it to burn breaches his agreement to “use all reasonable means to save and preserve the property at and after a fire.” As the plaintiff Bellman as well as the Bellman-Williams Auto Company agreed with the insurance companies that Williams as well as Bellman should- “use all reasonable means to save and preserve the property at and after a fire,” failure so to do constitutes a breach of a provision of the contract which, according to the express terms of the contract, operates to relieve the companies of all liability.

Since the assignee, Bank of Evansville, has no greater rights against the insurance companies than the insured (Keith v. Royal Ins. Co. 117 Wis. 531, 94 N. W. 295), it follows that the complaints were properly dismissed as to all of the plaintiffs.

By the Court. — Judgments affirmed.