John R. Davis Lumber Co. v. Home Ins. Co. of New York

• Decision Date: 02 February 1897
• Citation: 70 N.W. 59,95 Wis. 542
• Parties: JOHN R. DAVIS LUMBER CO. v. HOME INS. CO. OF NEW YORK ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 542

70 N.W. 59

JOHN R. DAVIS LUMBER CO.

v.HOME INS. CO. OF NEW YORK ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by the John R. Davis Lumber Company against the Home Insurance Company of New York and another. Judgment for plaintiff. Defendants appeal. Affirmed.

The action is on two policies of fire insurance--one each--issued by the two defendant corporations upon the plaintiff's property at Phillips, Wis. The two insurance companies were joined in the action, as defendants, under chapter 235 of the Laws of 1893. The plaintiff had large mills, factories, and other buildings, and large quantities of lumber, on which it carried a large amount of insurance. One E. H. Winchester was for several years carrying on a large insurance business at Phillips. He was the local agent for a large number of insurance companies. He was not the agent of the defendant companies. He had been employed largely by the plaintiff to procure insurance on its property. In order to procure the amount of insurance desired by the plaintiff, Winchester applied to Messrs. Sunderland & Ostrander, agents for the defendant companies at Superior, Wis., and procured from them the policies on which this action is based. The action of their agents in issuing the policies was unsatisfactory to the home offices, and they were ordered to cancel the policies. June 15, 1894, Winchester went to the plaintiff's office, and, in the absence of plaintiff's officers, procured the policies from the plaintiff's bookkeeper, and returned them to Sunderland & Ostrander. He says that he told the bookkeeper that the policies were wanted for the purpose of cancellation. But this the bookkeeper denies. By the policies, there was reserved the right to cancel them on five days' notice. Before the expiration of five days, and on June 19, 1894, a fire occurred which destroyed a part of the property mentioned in the policies. At the time of the fire no premiums upon these policies had been paid. The plaintiff had an arrangement with Winchester whereby time was given for the payment of premiums on all their insurance procured from him. Directly after this fire, plaintiff deposited the amount of the premiums on these policies with Winchester, who forwarded it to Sunderland & Ostrander, who returned it to Winchester. The principal defense to the action was that the policies had been surrendered and canceled, and were not in force at the time of the loss. At the opening of the trial the defendants moved nonsuit on the ground that the complainant did not state a cause of action, and that two causes of action had been improperly joined, and asking for separate trials, all of which was denied. The court proceeded to try both causes of action to one jury, took a separate special verdict, and rendered a separate judgment against either defendant. At the close of the plaintiff's testimony the defendants again moved a nonsuit, on the ground that the plaintiff had failed to prove the payment of the premiums. This motion was denied. The defendants asked for the submission of several questions, proposed by them, in the special verdict. The court did not submit these proposed questions, but submitted others instead. The special verdict was as follows: “(1) Was E. H. Winchester in June, 1894, the agent of the plaintiff to receive notice of cancellation of insurance policies held by the plaintiff? Answer. No. (2) Was E. H. Winchester in June, 1894, the agent of the plaintiff to surrender for cancellation policies of the plaintiff, and waive the right of the plaintiff that the policies should remain in force for five days after the notice of the cancellation? Answer. No. (3) Did the plaintiff on the 16th day of June, 1894, voluntarily surrender the policy numbered 786 issued to it by the Home Insurance Company of New York, for cancellation, and waive its right to have said policy remain in force five days after notice of cancellation? Answer. No. (4) If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages? Answered by directionof the court, as to the Home Insurance Company, $1,187.” The verdict in each case was the same, except as to the amount of recovery. A several judgment was rendered against each defendant, from which they severally appeal.

Phillipps & Hicks and M. H. Beach, for plaintiff.

Barbers & Beglinger and Haring & Frost, for defendants.

NEWMAN, J. (after stating the facts).

The first error alleged is the denial of the defendants' first motion for a nonsuit, and compelling a joint trial. This motion was based on the claim that there was a misjoinder of causes of action and of parties defendant. It is clear that, aside from the provisions of chapter 235 of the Laws of 1893, it is not permissible to join in one complaint causes of action which do not “affect all the parties to the action.” Rev. St. § 2647. It is manifest that neither of the causes of action stated in the complaint affects both defendants. Neither defendant is affected, even in a slight degree, by the cause of action stated against the other. So, but for the statute referred to, the objection must be sustained, if properly taken. But the only permissible way to raise the objection is by a demurrer to the complaint on that ground. Rev. St. §§ 2649, 2654. It cannot be raised by a general demurrer on the ground that the complaint fails to state a cause of action. Nor by a demurrer ore tenus or objection at the trial. Nevil v. Clifford, 55 Wis. 161, 12 N. W. 419. It is waived if not taken by demurrer on that ground. Having been once waived, the right to object on that ground is...