Opinion
January 12, 1956 —
February 7, 1956.
APPEAL from an order of the circuit court for St. Croix county: CARL H. DALEY, Circuit Judge, Presiding. Affirmed.
For the appellant there was a brief by Byrne, Bubolz Spanagel of Appleton, and Lehner, Lehner Behling of Oconto Falls, and oral argument by Adolph P. Lehner.
For the respondents there was a brief by Doar Knowles of New Richmond, and oral argument by W. T. Doar, Jr.
The action is one to recover the insured value of real property which the complaint alleges was totally destroyed. After the Insurance Company answered, various affidavits and exhibits were introduced by each party and the defendant moved for summary judgment dismissing the complaint. The court denied the motion and the defendant appeals.
Plaintiffs' application for insurance was made on the form supplied by the Insurance Company. This had separate spaces for the barn, the barn basement, and the silo. The blanks were filled out for $11,500 insurance on the barn, $500 on its basement, and $500 on the silo. The company issued its policy insuring the structures separately against loss by windstorm in these amounts. On August 15, 1954, a windstorm totally destroyed the property. The plaintiffs made proof of loss and claimed the insured value of the three items. The insurer notified them that the policy permitted it to replace damaged property instead of paying for it and it elected to replace the barn and basement and to pay the insured value of the silo. The owners replied that this was not acceptable and commenced the action.
Plaintiffs' complaint alleged that the barn, basement, and silo "constituted a single instrumentality in that the barn was constructed on the barn basement and the silo attached to the barn by a chute used to carry the feed to the barn which silo was a part of the barn." The affidavits and exhibits tend to substantiate this.
We agree with the trial court in its conclusion that State Bank of Chilton v. Citizens Mut. Fire Ins. Co. (1934), 214 Wis. 6, 252 N.W. 164, rules defendant's motion. That situation in its material aspects is identical with the one now before us. A witness testified (p. 13):
"`The silo was located on the southwest corner of the barn and attached to the barn by a chute used to carry feed to the barn. It was a wooden silo and was part of the barn.'"
The insurer elected to rebuild the barn making no mention of the silo. We held (p. 14):
"While the items `barn' and `silo' were separately valued, they constituted together a single instrumentality on the farm. If the defendant wished to exercise its right to rebuild, it should have offered to build the structure in its entirety. The mere fact that items were separately evaluated did not work a severance so far as the construction is concerned. The defendant not being authorized under the terms of the policy at its option to rebuild the property in part, its offer as made was ineffectual to secure to it the option of discharging its obligation by rebuilding. The time within which such election could be made has long since expired. The right of the plaintiffs to recover money damages is therefore complete."
On the record existing at the time of defendant's motion, we are unable to recognize any material difference between the State Bank of Chilton Case, supra, and the present one, nor a ground on which defendant was entitled to a summary judgment dismissing plaintiffs' complaint.
By the Court. — Order affirmed.