Gross v. Milwaukee Mechanics' Insurance

66 N.W. 712, 92 Wis. 656, 1896 Wisc. LEXIS 316

• Court: Wisconsin Supreme Court
• Decided: March 27, 1896
• Status: Published

Opinion

MaRshall, J.

The actions were properly consolidated. Oh. 235, Laws of 1893, provides that, should the insured bring suit on any policy or policies of insurance, he may join as parties defendant any and all insurance companies interested in the loss. Sec. 2192, R. S., provides that, “ when two or more actions are pending in the same court which might have been joined, the court or judge, on motion, shall, if no sufficient cause be shown to the contrary, consolidate them into one, by order.” Under the law of 1893 the conclusion is easily reached that the actions might have been joined in the first instance; therefore it was the duty of the. court to grant the motion to consolidate them when made, under sec. 2792, R. S., as no cause was shown to the contrary, the motion being made and heard on the pleadings, which were substantially the same in both cases.

Exception was taken to the finding of the court that liability on the policies was denied during the time required for filing proofs of loss, but such finding is well supported by the evidence. Such denial of liability constituted a waiver of proofs of loss, under repeated decisions of this court. McBride v. Republic F. Ins. Co. 30 Wis. 563; Harriman v. Queen Ins. Co. 49 Wis. 71; King v. Hekla F. Ins. Co. 58 Wis. 508; Campbell v. Am. F. Ins. Co. 73 Wis. 100.

The important question here presented'is, Was the structure in which the goods were located at the time of the fire a part of the one-story frame store building, within the meaning of the contract of insurance? Before the shed structure, called a “ lean-to,” was moved back, it obviously constituted a part of tbe store building. After its removal •and tbe construction of tbe addition at tbe back of tbe main 'building it was connected therewith by a platform nailed "to both structures, in which position it continued to be used 'down to tbe time of tbe fire, tbe same in all respects as at 'the time tbe policies were issued.

Precedents involving similar questions are at hand, some of which were cited in tbe briefs of counsel: In Cargill v. Millers' & M. M. Ins. Co. 33 Minn. 90, there was a warehouse located two and one-half feet from tbe elevator building: Tbe two buildings were fastened together by a few strips of board nailed upon each. Held that, as the warehouse was used as a part of the elevator, it must be considered as having been intended by the parties to' be included in the designation “ elevator building and additions.” In Pettit v. State Ins. Co. 41 Minn. 299, the words “frame, ironclad, metal-roofed building occupied for the storage and handling of grain, and known as the St. Anthony Elevator, situated in Auditors’ Subdivision No. 21, Minneapolis, E. D., Minnesota,” were held to include a building used in connection with the main elevator building, located 300 feet from the main building, and connected with it by two galleries. The court said, in effect, that the broad description was not intended to limit the risk to the main building, because the language of the policy was not thus limited; that it was descriptive of the character, construction, purpose, and use of the building insured. To the same effect is Home Mut. Ins. Co. v. Roe, 71 Wis. 33. The descriptive words were, “ frame planing-mill building and addition.” The engine room, consisting of an independent structure, — ■ except so far as it was connected to the main building by a shaft for the transmis,sion of power and by a spout through which shavings were forced into the engine room,— was located twenty feet from such main building. It was held that the engine room was an essential part of the mill, and that the words “ planing-mill building ” were broad enough, under the circumstances, to include it.

The reasoning of the cases cited, to which many more might be added, applies aptly to the facts of this case. The Shed and main building, before the change, constituted the one-story store building. Its character in that regard, under the circumstances, was not changed by moving back the shed and constructing the addition. Such addition, former main building, and shed, all connected and used together, constituted the one-story frame store building within the meaning of the policies at the time the loss accrued.

By the Gowrt.— Judgment affirmed on both appeals.