Redman v. Ætna Ins. Co.

• Decision Date: 24 February 1880
• Citation: 4 N.W. 591,49 Wis. 431
• Parties: REDMAN AND OTHERS v. THE ÆTNA INS. CO.
• Court: Wisconsin Supreme Court

49 Wis. 431

4 N.W. 591

REDMAN AND OTHERS

v.THE ÆTNA INS. CO.

Supreme Court of Wisconsin.

Filed February 24, 1880.

Appeal from Monroe circuit court.

Action upon a policy of insurance against fire, issued by the defendant company to the plaintiffs on machinery, mill gearing and fixtures in their mill in Prescott.

The complaint is in the usual form of complaints in such cases, and contains the policy in suit and certain printed conditions of insurance indorsed upon it. The policy contains this clause: “Special reference being had to assured's application, No. 164, which is hereby made a part of this policy and a warranty on the part of the assured.” The application is not set out in the complaint. The accidental destruction of the insured property by fire, the plaintiff's ownership thereof, the making of due proof of loss, and the performance of all conditions in the policy to be performed on the part of the plaintiffs, are alleged. The answer denies knowledge or information by the defendant as to whether, as stated in the complaint, the value of plaintiff's interest in the insured property was at least $22,000; and whether such property was, as alleged, “accidentally and by misfortune totally consumed, burned and destroyed by fire;” and states upon information and belief that “said property at the time of said fire was not worth the said sum of $22,000.” These are all of the averments in the answer pleaded as a defence only. The residue of the answer consists of a counter claim, the prayer of which is that the policy be delivered up and cancelled.

In this counter claim the defendant denies generally that the plaintiffs have performed all of the conditions of the policy, and affirms that the plaintiffs made a written application for the insurance, which they stipulated should be a warranty “the same as if written on the face of the policy.” The pleading then states the answer made by the plaintiffs to certain questions put to them in the application, and negatives the truth of such answers. These are stated in the opinion. It also contains an averment that the insured property “was very insufficient and inadequate for the purpose it was being used,” and that the plaintiffs concealed the fact from the defendant.

The plaintiffs interposed a general denial of the allegations of the counter claim in reply thereto.

On the trial it was admitted that the legal title to the premises upon which the insured property was situated was in the plaintiffs, that they made due proof of their loss, that the loss was total, and that if the company is liable such liability accrued before the commencement of this action.

Counsel for plaintiffs offered the policy in evidence, whereupon counsel for defendant tendered the application and asked that it be put in evidence with the policy. The court ruled that the application could not be received at that stage of the trial, and repeated the ruling, when the defendant's counsel sought to introduce it in evidence on the cross-examination of one of plaintiffs' witnesses. On such cross-examination (the witness being one of the plaintiffs) he was asked by defendant's counsel: “How much insurance did you have upon the mill? What was the amount of the indebtedness of the firm at the time of this fire?” The court sustained objection to both questions.

The court overruled a motion for a nonsuit, and also a motion that the jury be directed to return a verdict for the defendant. The grounds of these motions were that the plaintiffs had failed to prove the whole contract and compliance with the conditions thereof. No testimony was introduced on the behalf of the defendant. The court directed a verdict for the plaintiffs for the amount of the insurance. The defendant has appealed from a judgment against it, entered pursuant to the verdict.

J. S. White and W. F. Vilas, for respondents.

J. W. Lusk and Baker & Spooner, for appellant.

LYON, J.

Unless the plaintiffs were bound in the first instance to produce their application for the insurance, and prove the truth of the statements therein contained, the circuit court properly directed a verdict for them. If they were not bound to do so it is not claimed that they were not entitled to recover. The controlling question to be determined on this appeal is, therefore, was the burden upon the plaintiffs to show the truth of the statements in the application and a compliance by them with its stipulations, or upon the defendant company to prove breaches of some of those stipulations.

The argument of the learned counsel for the defendant, if we understand it correctly, is that the action, being upon a contract, the whole contract must be pleaded and proved by the plaintiffs, and inasmuch as the complaint shows that there was an application for the insurance by the plaintiffs containing statements and stipulations expressly made a part of the insurance contract, the plaintiffs should have pleaded, or at least should have proved, such application, and should have shown that the statements of fact therein contained were true, and that they had complied with all of its stipulations. We do not understand that the established rules of pleading require the plaintiff, in every action upon contract, to aver and prove the whole contract. Chitty, in his treatise on pleadings, says: “It is also a general rule of pleading that matter which should come more properly from the other side need not be stated. In other words, it is enough for each party to make out his own case or defence. He sufficiently substantiates the charge or answer for the purposes of pleading, if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and therefore is not compelled to notice and remove in his declaration or plea every possible exception, answer or objection which may exist, and with which the adversary may intend to oppose him.” Vol. 1, p. 225.

“If the plaintiff allege a condition subsequent to his estate he need not aver performance, but the breach must be shown by the defendant, and matter in defeasance of the action need not be stated; and wherever there is a circumstance, the omission of which is to defeat the plaintiff's right of action, prima facie well founded, whether called by the name of a proviso or a condition subsequent, it must in its nature be a matter of defence, and ought to be shown in pleading by the opposite party. In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exemption; but if there be an exception in a subsequent clause, that is matter of defence, and the other party must show it to exempt himself from the penalty.” Id. 246.

“It is sufficient to state those parts of the contract whereof a breach is complained, or, in other words, to show so much of the terms beneficial to the plaintiff in a contract as constitutes the point for the failure of which he sues; and it is not necessary or proper to set out in the declaration other parts not qualifying or varying in any respect the material parts above mentioned.” Id. 311.

Judge Gould, in his admirable treatise on the principles of pleading, in chapter 4, states the rules on this subject as follows:

“Section 17. It is never necessary, by the common law, for the plaintiff, in his declaration, to state or in any manner take notice of any condition subsequent annexed to the right which he asserts; for the office of such a condition is not to create the right on which the plaintiff founds his demand, but to gratify or defeat it. The condition, therefore, if performed or complied with, furnishes matter of defence, which it is for the defendant to plead. Thus, in debt on bond, it is not necessary for the plaintiff, in his declaration, to state or count upon any other than the penal part of the instrument, leaving the condition to be pleaded by the defendant, if it affords him any defence, as it does if performed; for the penal part of the bond alone constitutes, prima facie, a right of action.

Section 19. It is a general rule that, in declaring upon a deed or other instrument consisting of several distinct parts, the plaintiff is required to state only so much...