Stanhilber v. Mutual Mill Insurance

Cassoday, J.

It is claimed that the application for the insurance was made by the firm and dated in Chicago, where the premium was paid and the loss, if any, was payable; that by the terms of the application there was to be *290 a total concurrent insurance upon the property, including the policy in question, of $40,000; that such representation was a continuing warranty that that amount of insurance should be continued upon the property; that at the time of the fire, as a matter of fact, there was only the amount mentioned in the foregoing statement, and hence that the amount of the defendant’s liability was proportionately reduced. The difficulty with this claim is that no copy of such application, nor of any application or representation on the part of the assured, was ever attached to or indorsed upon the policy as required by sec. 1945a, R. S.1 The result is that if that section is applicable and binding, then such omission to so attach to the policy or .indorse thereon a copy of such application, forever precluded the defendant from pleading, alleging, or proving such application, or the falsity thereof, in any action upon the policy. Ibid.; Dunbar v. Phenix Ins. Co. 72 Wis. 492.

It is conceded that at the time of issuing the policy the defendant company had no license to do business in this state. The broad contention is that this contract of insurance is to all intents and purposes an Illinois contract, and that although it was for the insurance of property in Wisconsin, yet that it was binding upon the parties without compliance with the statutes of this state, and regardless of their requirements. It has recently been held by this court that sec. 1943, R. S., relating to the measure of damage *291 in oases of real property insured and destroyed, “ applies to all insurance contracts, no matter where made, affecting real property in this state.” Seyk v. Millers' Nat. Ins. Co. 74 Wis. 67. It is to be remembered that a contract against loss by fire is a contract of indemnity. Darrell v. Tibbitts, L. R. 5 Q. B. Div. 560. In fact this is elementary, and needs no citation of authority. Although it may relate to the loss of real property, yet it in no way attaches to or affects the title of such property. The nature of the contract, therefore, is the same whether the risk is upon real or personal property. The logic of the decision in Seyk v. Millers' Nat. Ins. Co., supra, is equally applicable to personal property. “Eoreign insurance companies are not compelled to do business in this state. If they voluntarily choose to do so, however, they must submit to such conditions and restrictions as the legislature may see fit to impose.” State v. U. S. M. A. Asso. 67 Wis. 629. In support of that proposition numerous decisions are cited in that case, not only from this court and the courts of other states, but of the supreme court of the United States. As there indicated, that court has uniformly held that such state legislation does not pertain to matters of interstate commerce, nor the privileges or immunities of citizens in the several states, and this clause is there quoted from an opinion of that court by Mr. Justice Eield: “ They [the several states] may exclude the foreign corporation entirely; they may restrict its business to particular localities; or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.” Paul v. Virginia, 8 Wall. 181; Ducat v. Chicago, 10 Wall. 410; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Philadelphia F. Asso. v. New York, 119 U. S. 117. See, also, Fritts v. Palmer, 132 U. S. 282; and List v. Comm. 118 Pa. St. 322. A contract insuring property in this state *292 necessarily involves the doing of business in this state, and hence is subject to the laws of this state. The location, amount, condition, preservation, care, destruction, and value of such property, and the evidence relating to the same, are subjects of local concern and business, and hence the subjects of local legislation. ¥e must hold that the trial court properly excluded from its consideration, as evidence, the application in question, by reason of the omission to attach a copy of the same to the policy or indorse it thereon, as stated.

Assuming that the clause of the policy in question contained in the foregoing statement was such as to import into that policy the four fifths clause contained in other policies on the same property, still it was competent for the defendant in making the contract of insurance to waive such clause by parol. The trial court found, in effect, that the defendant, by its agent, in making such contract, did waive such clause. Such finding is supported by the evidence. That such agent, under our statutes, has authority to waive such conditions by parol is settled by numerous decisions of this court. Sec. 1977, R. S.; Renier v. Dwelling House Ins. Co. 74 Wis. 94-96. It follows that the defendant is entitled to no deduction by reason of the four fifths clause contained in the policy issued by the Orient Insurance Company. The policy in question constituted one tenth of the total insurance upon the property destroyed at the time of the fire. It was only held liable for one tenth of the total loss. It follows from what has been said that the defendant was not held liable for any more than its proportionate share of such loss.

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