Gowan v. Homestead Mut. Ins. Co.

272 Wis. 127 (1956)

GOWAN and wife, Respondents, vs. HOMESTEAD MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court of Wisconsin.

January 12, 1956.

February 7, 1956.

*128 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.

BROWN, J.

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, *129 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.