Benedix v. German Ins. Co. of Freeport

• Decision Date: 05 November 1890
• Citation: Benedix v. German Ins. Co. of Freeport, 78 Wis. 77, 47 N.W. 176 (Wis. 1890)
• Parties: BENEDIX ET AL. v. GERMAN INS. CO. OF FREEPORT.
• Court: Wisconsin Supreme Court

78 Wis. 77

47 N.W. 176

BENEDIX ET AL.

v.GERMAN INS. CO. OF FREEPORT.

Supreme Court of Wisconsin.

Nov. 5, 1890.

Appeal from circuit court, Brown county.

The complaint is to the effect that, September 16, 1886, the defendant issued to the plaintiff Benedix a policy of insurance against loss by fire to the property described for the term of three years from that date; that said policy was made payable, in case of loss, to the other plaintiff, Rohr, mortgagee, as his interest might appear; that, February 13, 1889, the property so insured was destroyed by fire, to the damage of the assured in the sum of $2,718; that there is now due the plaintiffs, by reason of the premises, the sum of $1,848.45; that immediately after said fire, the plaintiffs forthwith gave notice to the defendant of said loss, and have duly performed all of the conditions of said contract of insurance on their part to be performed, but that the defendant has neglected and refused to perform the conditions of said contract on its part, and has refused to pay said sum so due, or any part thereof, “although more than sixty days have elapsed since said notice, and due and satisfactory proofs of loss were duly furnished to the defendant company;” that the policy named is annexed to the complaint as a part thereof, and contains, among other clauses, one to the following effect: Proofs of loss must be completed and forwarded to the company within 60 days after date of loss, and must bear the certificate of a magistrate; that failure to comply with these terms and conditions within the time prescribed shall cause a forfeiture of all claims under this policy; that in case of loss it shall be optional with the company to rebuild or repair the building within a reasonable time, giving notice of its intention to do so within 60 days after having received the preliminary proofs of loss required by these conditions, and, in case of differences touching any loss or damage, the same shall be submitted to arbitrators, and no suit against the defendant should be maintainable until an award shall have been made showing the amount of loss, as herein provided. To said complaint the defendant demurred, on the ground that it appeared on the face thereof that it did not state facts sufficient to constitute a cause of action. From an order striking out such demurrer as frivolous, the defendant brings this appeal.Sylvester & Scheiber, for appellant.

Vroman & Sale, for respondents.

CASSODAY, J., ( after stating the facts as above.)

It is said that the complaint fails to allege that proofs of loss were forwarded to the defendant within 60 days after date of loss. The complaint does allege, in effect, that immediately after the fire the plaintiffs forthwith gave notice to the defendant of the loss. It also states, generally, that the plaintiffs duly performed all of the conditions of said contract to be performed on their part. This fully...