Johnson v. Home Ins. Co.

• Decision Date: 21 April 1885
• Citation: 6 P. 729,3 Wyo. 140
• Parties: JOHNSON v. HOME INS. CO
• Court: Wyoming Supreme Court

6 P. 729

3 Wyo. 140

JOHNSON v. HOME INS. CO

Supreme Court of Wyoming

April 21, 1885

Error to district court.

Action by one Johnson against the Home Insurance Company on a policy of fire insurance. From a judgment for defendant, on demurrer, plaintiff brings error. Affirmed.

Judgment affirmed.

Corthell & Arnold, for plaintiff in error.

McIntyre & Symons, for defendant in error.

BLAIR J.

OPINION

BLAIR, J.

The sole question presented for the decision of the court in this case is, did the court below err in sustaining the amended demurrer filed by the defendant in error to the plaintiff's petition? The alleged causes of demurrer are as follows:

First. That the court has no jurisdiction of the person of the defendant or the subject of this action, for the reason that the nature of the allegations constituting the plaintiff's cause of action, as set forth in said petition, are such that they are properly cognizable only in a court of equity. Second. That there is a defect of parties plaintiff in this: that it appears upon the face of said petition that said action is brought by the wrong plaintiff, and that John T. Purcell and W. A. Williams are the proper parties plaintiff, and are necessarily parties to said suit. Third. That the petition does not state facts sufficient to constitute a cause of action.

Assuming that the pleader, when he made his assignment of alleged errors in the order given above, had in mind and fully recognized the truth of the old saying, that the best of the wine should always be reserved for the last of the feast, I will consider the last assignment first; namely, that the petition does not state facts sufficient to constitute a cause of action. Whether the old rule, that a demurrer only admits what is well pleaded, or whether, as decided in the case of Stewart v. Balderston, 10 Kan. 131, that under the Code practice every thing stated should be taken as true, whether well pleaded or not, I deem it unnecessary in this case to discuss. Let it suffice for me to say that the defendant, by his demurrer, admits the truth of the allegations in the plaintiff's petition, --at least, in so far as is necessary to determine the question raised, if no further, --but challenges the right of the plaintiff to recover upon the facts stated.

By a careful examination of the plaintiff's petition I am fully satisfied that the court below committed no error in sustaining the defendant's demurrer. The first defect in the plaintiff's petition is that it wholly fails to state the kind or character of the property insured, or where located, --whether on American soil or on the ever-burning sands of the desert of Sahara. The pleader contents himself by merely averring "that on the ninth day of August, A. D. 1883, at the town of Laramie City, (now city of Laramie,) in the county and territory aforesaid, the said defendant, upon written application first duly made, in consideration of a certain premium, to-wit, the sum of $ 28 to the said defendant then paid, did, by a certain policy of insurance of that date, duly executed, insure one W. A Williams against loss or damage by fire to the amount of $ 4,000; (a true and correct copy of which said policy of insurance is hereunto attached, marked 'Exhibit A,' and is hereby made a part hereof.)" It will be observed, all that is alleged in this allegation is that on the day named, in the county of Albany, that the defendant, in consideration of the sum of $ 28, did insure Williams, generally, against loss or damage by fire to the amount of $ 4,000. Nor does it appear in any other part of the petition what kind of property was insured, but leaves the defendant and the court free to determine for themselves whether it was real, personal, or mixed, and where located.

The only other remote allusion in the petition to the property insured is as follows:

"And the said plaintiff further avers that afterwards, on the eighth day of September, A. D. 1883, the property insured became and was consumed and wholly destroyed by fire."

The able counsel for the plaintiff in error contended, in his argument before this court, that inasmuch as the policy of insurance discloses the character of the property insured its location, and the county and territory it is in, that the defect complained of, if it be a defect, is cured; particularly in view of the fact that the policy of insurance is made by an express averment a part of the petition. This contention of counsel of the plaintiff in error brings to the front the question whether, under our Code, the pleader can make an exhibit,...