Harriman v. Queen Insurance Co. of London , 49 Wis. 71 ( 1880 )

LyoN, J.

The exceptions preserved in the record are very numerous, and the legal questions which they present are fully argued in the briefs of the respective counsel, and were elaborately and ably discussed by them in their oral arguments. All of these questions which are deemed material may be classified under a few general heads, and they will be thus stated and considered in their order.

1. At the commencement of the trial, the defendant claimed •that the fifth defense, which avers failure of the assured to furnish proper proofs of loss, raised an issue in abatement, which ought to be determined ' before the trial of the issues made by the defenses pleaded in bar of the action. The case of Supervisors of Brown County v. Van Stralen, 45 Wis., 675, is relied upon as sustaining the position. The court denied the motion for a separate trial of that issue. "We think the court ruled correctly. The furnishing of proofs of loss as required by the terms of the policy (unless waived), is a condition precedent to the right to maintain this action; for the policy provides, in effect, that the loss shall not be payable until the expiration of sixty days, after such proofs shall have been furnished. At least, it gives the company sixty days thereafter to pay the loss. Performance of this condition precedent is, and necessarily must be, alleged by the plaintiffs, and, unless admitted or waived, must have been proved by them on the trial, or they were not entitled to recover. Redman v. Ins. Co., 47 Wis., 89. This is so because such performance is a constituent and indispensable part of the right of action. On the averment of performance of that condition an issue is made by a general or specific denial, and there is no necessity whatever for a formal plea in abatement or a separate trial of the issue.

If an action on an insurance policy fails for want of proofs of loss, the judgment may be either in bar or abatement, according to the terms of the contract. If the time for making such proofs lias expired, and the contract is that the insurer shall be discharged from liability unless the proofs are furnished within the specified time, the judgment will be a bar to another action on the same policy. But if time remains in which to make the proofs, the judgment will be that the action abate because prematurely brought.

In this case, however, there is no issue concerning the furnishing of proofs of loss. It is expressly stated in the answer that the plaintiff Harriman furnished to the defendant what purported to be such proofs; that the same were not accepted as a compliance with the terms of the policy in that behalf, but (quoting from the answer) “ on the contrary this defendant at once denied that any liability to the plaintiffs, or either of them, had arisen under said alleged policy, and refused to pay any alleged claim thereunder.” This is an express waiver of such proofs; for it is a denial of liability in any event, and an unqualified refusal to pay the loss. Such denial and refusal rendered the presentation of proofs of loss an idle formality, which the law does not require. McBride v. Ins. Co., 30 Wis., 562.

2. When the plaintiffs rested the case on their part, they had given no evidence tending to show that Harriman was the owner of the insured property, or that Mrs. Carabin had any interest therein as mortgagee. Counsel for the defendant thereupon moved for a nonsuit because no such evidence had been given. The court denied the motion.

First. No direct proof of Harriman’s title to the insured property was made on the trial. Counsel for plaintiffs contend, and have cited authorities in support of the position, that, having insured it as his property, the burden was upon the defendant to show his want of title. For reasons which will presently appear, we do not find it necessary to determine the question. We think' the fair and reasonable construction of the answer is, that it admits that title to the insured property was in Harriman down to the time of the., alleged conveyance thereof by him to Henley W. Chapman, in March, 1878. Ifc substantially alleges that Chapman became the owner thereof by means of such conveyance, which could not be true .unless Harriman was the owner when the conveyance was executed, and all of the denials of Harriman’s title seem to be predicated upon the fact that he had executed such conveyance. Hence, if Chapman took no title to the insured property by the conveyance in question, it must be presumed, nothing appearing to the contrary, that the title remained in Harriman until the property was burned.

The conveyance to Chapman was put in evidence on behalf of the defendant. It is a conveyance by Harriman, in general terms, of “ all his interest in and title to any real estate, wherever situate, not exempt from execution,” and contains no specific description of property affected by it. It appears, from recitals therein, that the same was executed compulsorily, pursuant to an order made by a court commissioner, in proceedings against Harriman supplementary to execution, in which proceedings Chapman had been appointed receiver.

The jury found that the insured property was Harriman’s homestead, and therefore exempt from execution. If that finding (which will be hereafter considered) is upheld, it follows necessarily that the answer admits title in Harriman, and the plaintiffs were not required to make affirmative proof of the fact. It is immaterial that the conveyance to Chapman was put in evidence on behalf of the defendant after the motion for a nonsuit had been denied. It is well settled that if a motion for a nonsuit for want of evidence to sustain the action, be improperly denied, the judgment for the plaintiff will not be reversed for that reason if the necessary evidence be supplied afterwards.

Second. The last remark disposes of the objection that when the nonsuit was denied no proof had been made that Mrs. Carabin had any interest in the insured property. Such proof was made during the progress of the trial.

We conclude, therefore, that if the insured property was the homestead of Harriman when he executed the conveyance to Chapman, the refusal to grant the nonsuit will not work a reversal of the judgment, the error (if it was error) having-been subsequently cured.

3. All the facts ordinarily required to be proved to establish the existence of a homestead right were found by the jury. The jury found that when the conveyance to Chapman was made, Harriman resided, with his family, in the hotel, claiming and intending it as his home; that he so resided therein from its completion in 1868 until after the policy in suit was issued, and had during that time no other home; and that he owned and occupied the same, claiming it as his homestead, when the several judgments introduced in evidence were docketed.

These findings are supported by the evidence, and manifestly they demonstrate that the property was Harriman’s homestead, unless the fact that it was also built for and used as a hotel deprives it of its homestead character, and its owner of any homestead rights therein. The undisputed evidence proves that the hotel was a large building, but covering less than one-fourth of an acre, including a court between two wings of unequal length extending from the main building, at the two ends thereof, to the rear; and that from the time it was erected until burned it was always kept as a hotel, a portion of the time by Harriman and the remainder of the time by his lessees.

We regard the case of Phelps v. Rooney, 9 Wis., 70, as decisive of the question under consideration. In that case, a building 20 feet wide, 150 feet deep, and four stories high — the basement and next story above it and part of another story being occupied as a store, the annual rent of which was valued at $1,500, and the remainder of the building being occupied by the owner as a residence — was held to be a homestead. The building was one of a continuous block of stores between East Water street and the river, in the city of Milwaukee. The then chief justice of this court dissented vigorously from the judgment, hut it has never been overruled or shaken, and it is now too late to disturb it by judicial decision.

It .may be that it would have been better had the court adopted the rule of later cases, where questions of the taxability of certain property of railroad companies have arisen, and held that property is not a homestead unless it is used principally as the residence of the owner; that if the chief use to-which it is applied is for some other purpose — as a manu-factory, store or hotel,— it is not á homestead, although it may also be used incidentally as the residence of the owner. Railway Co. v. Sup'rs of Crawford Co., 29 Wis., 116; Same v. Same, 48 Wis., 666; Railway Co. v. Milwaukee, 34 Wis., 271. But the rule in Phelps v. Rooney has stood too long to be now questioned here. The subject has passed from the courts to the domain of legislation.

It must be held, therefore, that under the findings of the jury the insured property was the homestead of Rarriman from a time prior to the conveyance to Chapman until after the' policy in suit was issued. From this it necessarily results that the property was not conveyed by Harriman to Chapman, and that the judgments against Harriman (none of them being specific liens) were not liens upon such homestead.

4. The next question which will be considered is, Was the building wholly destroyed, within the meaning of chapter 347, Laws of 1874? In addition to finding generally that the insured building -was wholly destroyed by fire, the jury found that no portion of the brick walls of the building remaining after the fire could be used in rebuilding it; that the foundations so remaining were not sufficient to support a building of the weight and dimensions of the one burned; that the expense of removing the worthless fragments of the old building would at least equal the value of all material left after the fire; and that such materials were worth less than. the cost of getting them out of the wreck of the burned building.

These specific findings are supported bj the evidence. Without attempting to define what constitutes a total destruction of a building, or to lay down a rule applicable to other cases, we cannot hesitate to hold that these findings show that the building in question was wholly destroyed, within the meaning of that term as used in the statute above cited. TIence, the findings as to the value of the building cannot reduce the recovery.

5. The instructions which the court gave the jury, many portions of which were excepted to on behalf of the defendant, will now be considered.

First. Many of these exceptions cover portions of the charge containing statements of the law applicable to the case generally, or to particular questions involved in it. These instructions were of no significance whatever in determining the specific questions of fact submitted to the jury. This observation applies to those portions of the charge in which the court explained to the jury what constituted a homestead, and what was a total destruction of a building, within the meaning of the act of 1874. It applies, also, to certain instructions proposed by counsel for defendant as to the effect of false representations made by the assured when he applied for the insurance. The law of the case was for the court to apply, in rendering judgment on the special findings, and the jury had no concern with it. They were only required to find the facts. True, they found that the building wTas wholly destroyed, which is, perhaps, a mixed finding of law and fact; but that might have been omitted without affecting the result, for they also found, specifically, all of the facts necessary to show that the building was wholly destroyed. No further notice need be taken of exceptions of this class.

Second. A paragraph in the charge reads as follows: “The only thing that you ought to concern yourselves about is, "What is the truth of this case? and when you determine what the truth is, put it down, .whether it strikes your nearest friend or most bitter enemy. Again, in answering these questions, where you cannot say truthfully7, on a fair examination of all the evidence, ‘ Yes5 to a question, you ought to say ‘No;’ because a question sometimes may he put so that an answer ‘Yes’ will not convey the exact truth; and, if you should put down ‘Yes,’ when that in your judgment was not the exact truth, it would be wrong, and therefore your proper answer to that question should be ‘No.’' Bear that in mind, and it will help you a great deal, in arriving at the proper answer to he put down to each one of these questions.”

A general exception was taken to the whole paragraph. The first sentence is faultless, and probably this fact of itself is fatal to the exception. But, however that may be, we find no error in the instruction. All of the specific questions of fact submitted to the jury (except those calling for values) were so framed as to require categorical answers. Each question could only be answered by a simple “ Yes ” or “ No.” As we understand the instruction, the jury were told, in substance, that if they were' unable upon the evidence to give an affirmative answer to a given question, they should answer it in the negative. Perhaps, had the instruction been prepared by the learned circuit judge at his leisure, and not in the haste and confusion of a sharply contested trial, he might have expressed the idea he intended to convey a little more felicitously; yet we see no reason to believe that any one could have misunderstood his meaning.

Third. As to the facts which the court directed the jury to find, we think they are established by the uneontradicted testimony, and hence the direction was' proper.

The testimony of Mrs. Carabin and her agent, Morrow, which is not disputed, shows that she owned or held as collateral security all mortgages and mechanics’ lien judgments proved on the trial to be liens on the insured property; that one of these mortgages, referred to as the Katharine Gr. Curtis mortgage, amounted to a little more than $10,000; and that all the residue of such liens, on the first of January, 1874, amounted to $6,978.17, which, with interest at 10 per cent, added, made the amount due when the policy was issued, $10,525. The jury subsequently found the aggregate - of these liens to be $20,900. Morrow also testified that April 1, 1874, Harriman owed him $11,570, an increase in three months of about $4,600, and that they treated the same as a lien upon the property. The circuit court held, and we think correctly, that, the incumbrances on the property being less than $7,000 January 1, 1874, that sum and time were to be taken as the basis of the computation, and that the amount could not be increased by a subsequent parol agreement between Morrow (who owned or controlled the incumbrances) and Harriman; and especially so because the property was a homestead, and Harriman had a wife living, without whose consent, evidenced by her signature, he could not incumber it.

The testimony of Mr. Benson, the agent of the defendant, who issued the policy in suit, is that when he issued it he knew that the unpaid taxes on the insured property were outstanding. Indeed, he had been city treasurer for three years, and was defendant in actions brought to set these taxes aside as illegal. Under these circumstances it is quite immaterial whether such unpaid taxes were valid or not.

The question of Harriman’s title has already been considered. Further discussion of the instructions would be profitless. It must suffice to say that we find no error in tlieni which will justify a reversal of the judgment.

6. Some of the special findings have already been discussed under the foregoing heads. It is only necessary to add that there is evidence tending to prove all of the facts found by the jury, and hence none of the findings can be disturbed. "We think that the findings cover all of the material issues made by the pleadings, upon which there was any conflict of testimony, and that such findings are of themselves sufficient to support the judgment.

7. Many points 'and exceptions not herein specially stated are discussed in the briefs of counsel. Some of these are rendered immaterial by the views above expressed; aud it is believed that those which are material are disposed of adversely to the defendant by our rulings upon the different questions hereinbefore considered and passed upon.

It is quite unnecessary, and the length to which this opinion has been extended renders it improper, to discuss those points and exceptions further, or even to state them.

By the Court. — The judgment of the circuit court is affirmed.