Redmon v. PHœnix Fire Ins. Co.

• Decision Date: 08 February 1881
• Parties: REDMON AND OTHERS v. PHŒNIX FIRE INS. CO.
• Court: Wisconsin Supreme Court

51 Wis. 292

8 N.W. 226

REDMON AND OTHERS

v.PHŒNIX FIRE INS. CO.

Supreme Court of Wisconsin.

Filed February 8, 1881.

Appeal from circuit court, Monroe county.

The complaint sets out the substance of a policy of insurance for $5,000, issued by the appellants to the respondents, and a portion of the application therefor, upon their steam flouring mill in Prescott, and the machinery and fixtures therein, (exclusive of boilers and engines,) and on stock of wheat and flour in said mill, and alleged performance of conditions on the part of the respondents, the accidental destruction by fire, and the required notice and proofs of loss, and failure to pay, and referred to the policy annexed thereto as forming a part of the complaint. In addition to denials, the answer, among other things, sets out some of the terms of the application, and, among other things, alleged “that in said application it was expressly agreed by the plaintiffs, and said plaintiffs represented and warranted in and by said application and policy, that at the time said policy was issued that there was but $5,000 encumbrance upon said mill, mill gearing, machinery, and fixtures. whereas there was at that time, as defendant is informed, and believes true, encumbrances thereon largely in excess of said sum of $5,000, and to the amount of $16,000, or thereabouts, which said plaintiffs well knew.” The answer further “denies any liability whatever to said plaintiffs on said policy of insurance by reason of the aforesaid and other false representations, breaches of warranty and agreements in said application and policy contained, whereby said policy was void, as by the express terms thereof provided, and on account of the concealment by plaintiffs of facts material to the risk, known to the plaintiffs and unknown to said defendant,” and asks to have the policy delivered up and cancelled.

The policy, among others, contains the following: “For further particulars, reference is had to application and survey No. 2277, which is made part of this policy.”“If an application, survey, plan, or description of the property herein insured is referred to in this policy, such application, survey, plan, or description shall be considered a part of this contract, and a warranty by the insured, and any false representation by the assured of the condition, situation, or occupancy of the property, or any omission to make known every fact material to the risk, or an overvaluation, or any misrepresentation whatever, either in a written application or otherwise, * * * then, and in every such case, this policy shall be void.”

The application and answer so referred to in the policy, and signed by the respondents, were put in evidence, and contained, among other things, the following questions and answers: Questions.“24. What encumbrance, if any, is now on said property? If mortgaged, what is the whole cash value of the property mortgaged? Is there any insurance by the mortgagee? If so, what amount?” Answers. “24. Five thousand dollars. No.”

After the plaintiffs rested, the defendants called the plaintiff Elijah N. Redmon, who testified that the $5,000 encumbrance mentioned in the answer to question 24 was a mortgage to Copp. Whereupon the defendant offered in evidence a notice of taking the depositions of three witnesses at Indianapolis, August 29, 1877, and the admission of the service thereof August 1, 1877, and no objection was made to its form or manner of service, and which offer was stated to be for the purpose of establishing the fact stated in the answer, that there was, in addition to the $5,000 encumbrance mentioned in the application, some $10,000 or $12,000 more encumbrance thereon. Objection was made on the ground that it was not admissible under the allegations in the answer, and the same was sustained. The defendants, to further maintain and prove the issues on their part, successively offered to introduce the three depositions taken under said notice, for the purpose of showing the encumbrances on said mill. These depositions were to the effect that Nordyke, Morman & Co., in the spring of 1875, contracted to manufacture and sell to the plaintiffs certain machinery for said mill, for which they agreed to pay about $16,000; and that the same, together with a large amount of extras, were manufactured and began to be shipped to the plaintiffs, under the contract, June 23, 1875, and the same were put up and used in and upon said mill, under the superintendence of Nordyke, Morman & Co., and that there was still due thereon on account of said machinery about $13,000, and for which they had filed a mechanic's lien in Pierce county, Wisconsin; to which offer the plaintiffs objected and the same was sustained. The defendants, further to maintain and prove the issues on their part, offered in evidence a certified copy of a mechanic's lien, filed on the property in question, in the office of the clerk of the circuit court for Pierce county, June 21, 1876, and seven days prior to the contract of insurance in question, by Nordyke, Morman & Co., for and on account of said machinery so provided by them and put in said mill for the same purposes stated, showing a full copy of such mechanic's lien, recorded and docketed; to which the counsel objected, and the same was sustained. Thereupon the defendant asked leave, upon terms or otherwise, to amend his answer by striking out the words “and for the purposes of establishing a counter claim,” to which the plaintiffs objected, and the same was sustained. To each of these different rulings of the court the defendants excepted, and the defendants thereupon rested, and the court directed a verdict for the plaintiffs.

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

J. W. Lusk, for appellant.

CASSODAY, J.

Two questions are presented for consideration: Was the evidence to prove the existence of a mechanic's lien of several thousand dollars on the property in question properly excluded by reason of the insufficiency of the answer? Was the mechanic's lien an encumbrance within the meaning of that word as used in the application for the insurance? It is urged on the part of the respondents that, in order to entitle the defendants to introduce the evidence offered, they should have alleged in their answer such facts as would have been necessary to allege in a complaint by Nordyke, Morman & Co. to enforce the lien. Of course, as urged by counsel, the statute requires the answer to contain, in order to make it available, “a statement of any new matter constituting a defence or counter claim, in ordinary and concise language, without repetition.” Section 2655, Rev. St. But the criticism is that the answer “avers no fact; asserts only the pleader's conclusion that there were ‘encumbrances' on the property in excess of the stipulated $5,000, without so much as indicating of what character they might be, much less stating facts from which the court could perceive that any existed.” Good pleading undoubtedly required a statement of the nature of the encumbrances, when and in whose favor they were incurred. But the question is not whether this is a model answer, but whether it was so defective as to authorize the exclusion of the evidence. It is to be remembered that, “in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” Section 2668, Rev. St.; section 21, c. 125, Rev. St. 1858. The liberality here indicated has been sanctioned by this court from the first. Flanders v. McVicker, 7 Wis. 372;Robson v. Comstock, 8 Wis. 372;Morse v, Gilman, 16 Wis. 504. So this court has frequently held that, upon objection to receiving any evidence in support of a complaint or answer taken for the first time at the trial, the pleading will be more liberally construed than where it is formally demurred to on the same ground. Luth. Ev. Church v. Gristgan, 34 Wis. 328;Hazleton...