Olbrich v. Mutual Fire Insurance , 184 Wis. 413 ( 1924 )

The following opinion was filed May 6, 1924:

Vinje, C. J.

It is undisputed in this case that so far as the dwelling house covered by the policy is concerned a total loss occurred long before the defendant was notified of the additional insurance. The loss occurred March 26, 1922, and defendant was not notified and did not know of the additional insurance until April 26, 1922. Any action or declaration by the company or any of its agents made before notice of additional insurance was given would therefore not constitute a waiver on its part. And since notice of additional insurance did not come to defendant till after the loss, a discussion of the mies of law or construction of the quoted portion of the policy applicable to notice before a loss occurs are beside the question. Much of plaintiff’s brief is addressed to this subject.

As soon as defendant was informed of the additional insurance it promptly and continuously asserted its nonliability as to the insurance on the dwelling house. This it was authorized to do because the condition against additional insurance without notice was valid. Bourgeois v. Mutual Fire Ins. Co. 86 Wis. 402, 57 N. W. 38. Its offer to cancel the policy as to the barn, which was not destroyed, cannot be held to affect or render nugatory its denial of liability for loss on the dwelling house. If the policy is held to be indivisible, it was only an error of law to offer to cancel the policy as to the barn. It cannot be construed as a waiver of taking additional insurance as to the house. Where there is a policy containing a provision that in case of additional insurance it shall be void or continued in force, at the option of the insurer, upon receiving notice, and a loss occurs before notice of additional insurance is given, the insurance company must either admit liability and pay the loss or it must deny liability. There is no occasion for any application of the option as to continuing the insurance.. The subject of insurance is destroyed and the option has nothing to operate upon. Here the house was destroyed and the defendant denied liability. Plaintiff claims a waiver because of belated offer to return the unearned premium. In a case of a breach by the insured of a condition against additional insurance it is not necessary to offer to return the unearned premium. Woodard v. German-American Ins. Co. 128 Wis. 1, 106 N. W. 681; 14 Ruling Case Law, p. 1193, § 370.

The defendant did not demand or request proofs of loss. The fact that those sent by the plaintiff were retained by the company constitutes no waiver. Woodard v. German- American Ins. Co., supra.

We find no facts in the record that disclose any waiver on the part of the defendant. It had a right to and did deny liability as to the loss on the house from the time it knew of the additional insurance.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on October 14, 1924.