Carberry v. German Ins. Co. of Freeport, Ill.

• Citation: 8 N.W. 406,51 Wis. 605
• Parties: CARBERRY AND ANOTHER v. THE GERMAN INS. CO. OF FREEPORT, ILL.
• Decision Date: 24 March 1881
• Court: United States State Supreme Court of Wisconsin

51 Wis. 605

8 N.W. 406

CARBERRY AND ANOTHER

v.THE GERMAN INS. CO. OF FREEPORT, ILL.

Supreme Court of Wisconsin.

Filed March 24, 1881.

Appeal from circuit court, Waukesha county.J. V. V. Platto and Cook & Canney, for respondents.

Cotzhausen, Sylvester & Schieber, for appellant.

TAYLOR, J.

This appeal is from an order of the circuit court overruling a demurrer to the complaint. The action is brought upon a policy of insurance against fire. The complaint sets out, among other things, that the company agreed to pay, in case of loss, “the amount of the loss or damage, to be estimated according to the cash value of the property at the time of the loss, and to be paid ninety days after notice and proof thereof made by the assured to the defendant.” The appellant answers to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The point made against the sufficiency of the complaint is that it does not sufficiently state the facts showing that the plaintiff had given the required notice and proof of loss to the defendant 90 days before filing the complaint in the action. The allegations of the complaint are that the loss occurred on the twenty-first day of August, 1878, and it then alleges as follows: “That afterwards the plaintiffs gave due notice of said fire, destruction, and loss, and made due report and proof of the aforesaid loss, and duly performed and fulfilled on their part all the conditions of said policy of insurance, by them, and each and every of them, to be done and performed, and before the commencement of this action made due demand of the defendant that it pay the amount of said loss and damage, to-wit, the sum of $1,000. And the plaintiffs further show that the defendant has not paid the said sum of $1,000, or any part thereof, but it has refused and neglected, and still doth refuse and neglect, to pay the same, or any part thereof, to the plaintiffs, or either of them.” No copy of the policy of insurance is set out in the complaint, and there is no allegation therein showing within what time after the loss it was the duty of the assured to give notice thereof, and make report and proof of the same.

The learned counsel for the appellant insists that the complaint does not show upon its face that there was anything due to the plaintiff upon the policy of insurance set out in the complaint at the time the action was commenced, or at the time of filing the complaint, because the facts stated do not show that the proofs of loss were made and delivered to the defendant 90 days before the commencement of the action or filing the complaint. This position is not controverted by the learned counsel for the respondent, but he insists that, as it does not affirmatively appear upon the face of the complaint that the action was commenced within 90 days after the proofs of loss were furnished to the defendant, the complaint is sufficient on its face, and if the defendant seeks to make an issue upon the question whether the action is prematurely brought, he must do so by an answer in abatement setting up the fact, or avail himself of that fact, if it appears upon the trial, by a motion for a nonsuit. There is, we think, but one view of the question which will support the ruling of the court below upon this demurrer, viz.: that where the objection to the complaint simply goes to matters which would abate the action, and which are not a bar to plaintiff's cause of action, the defendant must answer, and set up the facts by way of answer, and that he cannot avail himself of the objection by a demurrer under the statute. This view of the case would construe the statute, which gives the right to demur on the ground that the complaint does not state facts sufficient to constitute a cause of action, to relate only to the absence of such facts in the complaint as show that the plaintiff neither has now, nor can have at any future time, a cause of action against the defendant; in other words, the general demurrer is not good unless upon the proof of the facts stated the defendant would be entitled to a judgment in bar of the plaintiffs' action. In view of the statute, which provides that the complaint must, amongst other things, contain “a plain and concise statement of the facts constituting such cause of action,” we hold that the facts which are required to be stated in the complaint are not only those facts which show that the plaintiff may have a cause of action against the defendant at some future time, but it must also contain the facts which show that he has a present cause of action which he is entitled to enforce at the time of filing and serving his complaint. The plaintiff must show by his complaint that his cause of action is perfect and enforceable at law when he serves the same. If, therefore, the complaint does not show that the demand sued for is due from and payable by the defendant to the plaintiff when his complaint is filed or served, it does not state facts sufficient to constitute a cause of action within the meaning of the demurrer given by the statute. This appears to be the most reasonable construction of the statute. Otherwise, even though the complaint contained allegations which affirmatively showed that the demand sued for was not yet due and payable, no demurrer would lie to the complaint, and the defendant would be compelled to take issue on the facts alleged and go to trial, when it was clearly apparent from the pleadings that no recovery could be had.

The question, then, is, do the facts stated in the complaint in this case show that the insurance money was due and payable when the complaint was filed? No inference can be drawn in favor of its being due because the facts stated do not negative that fact. The plaintiff cannot recover upon anything but the facts stated, and no inferences can be drawn in favor of the plaintiff except such as necessarily or fairly follow from the facts so stated. In this case the complaint alleges that after the loss occurred, the notice of the loss and proofs of same were given to the defendant, but there being no time stated when such notice was given or proofs made, there can arise no inference that they were given or made 90 days before the filing or serving of his complaint. The statement of facts would be equally true whether they...