Andrus v. Home Ins. Co.

• Decision Date: 12 March 1889
• Citation: 73 Wis. 642,41 N.W. 956
• Parties: ANDRUS ET AL. v. HOME INS. CO.
• Court: Wisconsin Supreme Court

73 Wis. 642

41 N.W. 956

ANDRUS ET AL.

v.HOME INS. CO.

Supreme Court of Wisconsin.

March 12, 1889.

Appeal from circuit court, Dane county.

This action is brought to recover upon a policy of insurance issued by the defendant to the plaintiffs for a total loss of the property covered by such policy of insurance. The defendant appeals from an order of the circuit court refusing to refer the action for trial. The motion for reference was made on the ground that the trial would involve the examination of a long account, within the meaning of section 2864, Rev. St. The court ruled, upon the pleadings and affidavits read upon the hearing of said motion, that there would be no examination of a long account involved in the trial of the action, within the meaning of said section.H. W. Chynoweth, for appellant.

Luse & Wait, for appellee.

COLE, C. J.

Was the court below right in refusing to order a compulsory reference in this case? The action is upon a policy of insurance upon a stock of drugs, paints, oils, medicines, stationery, books, wall-paper, and such other merchandise as is usually kept in a retail country drug-store. The stock was wholly destroyed by fire within the life of the policy. The motion for the reference was founded upon affidavits which tended to show that it will be necessary to examine bills of sale, inventories, or accounts consisting of 1,200 or 1,500 items, to ascertain the amount of the loss of the assured. Does such a case come within the statute authorizing the court, without the consent of the parties, to direct a reference on the ground that the trial of the issue requires the examination of a long account on either side, within the meaning of section 2864? It seems to us it does not. Though the examination of numerous items may be necessary to ascertain the amount of damage, yet that does not involve directly the examination of a long account. The value of the property destroyed is only collaterally involved as affecting the measure of damages. Stacy v. Railway Company, 72 Wis. 331, 39 N. W. Rep. 532. That case was an action for the negligent burning of the plaintiff's property. It was claimed the trial of the issues would involve the examination of a long account, and that a compulsory reference could be ordered. But the court overruled this position, holding that the value of the merchandise, lumber, and other property burned was only collaterally involved. Substantially the same ruling was made in Camp v. Ingersoll, 86 N. Y. 433, which was an action upon an award for the failure of the defendants to deliver certain stock; and it was insisted that to ascertain the value of the stock, the examination of a long account would be necessary. But the court says: “Though the examination of numerous items of damage may be involved, they do not constitute an account, technically and properly speaking, between the parties.” An account implies dealings and transactions between the parties, and where the action is based upon such an account, which has to be examined and investigated in order to settle the rights of the parties, a reference can be made. But it is where the action is based upon the account itself, that a compulsory reference can be made. But it does not follow, because a variety of items has to be examined to ascertain the amount of damage recoverable, that the same rule obtains. There the examination of the account is merely an...