Burr v. German Insurance

54 N.W. 22, 84 Wis. 76, 1893 Wisc. LEXIS 15

• Court: Wisconsin Supreme Court
• Decided: January 10, 1893
• Status: Published

Opinion

Cassoday, J.

It is undisputed that the policy was issued to James Oarey; that after the fire, and before the commencement of this action, the claim for the loss was assigned to the plaintiff by Oarey; that September 14, 1889, and five days prior to the fire, upon an attachment issued in an action in favor of one Stanley and against said Oarey and another, the sheriff levied upon and seized, under said writ, all the cranberries, cranberry boxes and barrels then in the warehouse mentioned in said policy, except the east 1,500 boxes of berries, and except the west 300 boxes of berries, which he did not levy upon, for the reason that they had previously been conveyed or mortgaged to W. D. Williams. For the reasons given in the opinion of Mr. Justice Orton in Carey v. German American Ins. Co., post, p. 80, we must hold that the policy was rendered inoperative and void by such levy,.seizure, and change of possession, under the clause of the policy on that subject contained in the foregoing statement, and that the same was not waived nor revived by the defendant’s adjuster and state agent; the provisions of the two policies in these respects being substantially the same.

The question recurs whether the policy was thereby rendered inoperative and void as to the property thereby insured and not so levied upon nor seized by the sheriff. In Loomis v. Rockford Ins. Co. 77 Wis. 87, and 81 Wis. 366, three buildings and certain personal property, situated on three different farms, were insured, each for a separate amount, by a policy stating the premium as a gross sum; and it was held that the contract was divisible, and that the sale of one of the buildings, in violation of a stipulation against changing the title of the insured property without the consent of the insurer, did not avoid the policy as to the other property, situated several miles from the building sold. In that case the present chief justice discusses the questions of divisibility and indivisibility of such contracts at length, and upon authority and reason; and there is no purpose here of renewing the discussion. In so deciding, the court expressly adhered to the former adjudications of this court there cited. In each of those cases the property insured consisted of buildings and personal property contained therein, with the risk distributed to the different items covered by the policy, and it was held that the contract of insurance, as to each building and the personal property therein, was indivisible. Schumitsch v. American Ins. Co. 48 Wis. 26; Hinman v. Hartford F. Ins. Co. 36 Wis. 159. In the case at bar the property covered by the policy was all personal, and situated in the same warehouse. The premium paid was a gross sum. The provision avoiding the policy in case of such levy, seizure, or change of possession was designed to protect the company against 'any increase of risk by virtue of such levy, seizure, or change of possession. The property insured being so situated that any increase in the risk, as to any portion thereof, necessarily increased the risk as to the whole, it is very obvious that the whole risk was a unit, and the contract of insurance an entire, indivisible contract. It follows that the avoidance of the policy by virtue of the levy, seizure, and change of possession went to the whole contract, and rendered it wholly inoperative and void. This makes it unnecessary to consider the question whether the action was commenced within the time limited by the policy.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.