Sims v. Mut. Fire Ins. Co. of Town of La Prairie

• Decision Date: 10 January 1899
• Parties: SIMS v. MUTUAL FIRE INS. CO. OF TOWN OF LA PRAIRIE.
• Court: Wisconsin Supreme Court

101 Wis. 586

77 N.W. 908

SIMS

v.MUTUAL FIRE INS. CO. OF TOWN OF LA PRAIRIE.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by George Sims against the Mutual Fire Insurance Company of Town of La Prairie. There was a judgment for defendant, and plaintiff appeals. Affirmed.Fethers, Jeffris, Fifield & Mouat, for appellant.

Winans & Hyzer, for respondent.

CASSODAY, C. J.

The second amended complaint in this action alleges, in effect: That August 11, 1893, the defendant insured the plaintiff against loss or damage by fire or lightning for the period of five years, to the amount of $775, as follows: On his dwelling house, $500; on his barn No. 2, $275,--all situated on the premises described. That August 8, 1894, all the property so insured was destroyed by fire, whereby the defendant company became liable to reimburse the plaintiff for the loss thus sustained, according to the provisions of the contract. That due notice of the loss was given to the defendant. That August 10, 1894, the secretary of the defendant, together with its committee appointed to adjust and determine the damages and loss, visited the premises, examined into the question of damages sustained as the result of the fire, and designated $775 as the loss sustained by the plaintiff as result of the fire. That the committee and secretary were duly authorized to so act and adjust the loss sustained. That thereupon the defendant became liable for the amount so determined by the committee of adjustment. That the plaintiff had given notice of the loss, and accurately and faithfully performed his part of the contract. That an assessment was duly levied and collected, under authority of the defendant, to provide for such loss, payable to the plaintiff, amounting to $775. That the defendant thereby became indebted to the plaintiff in that amount, and the same became payable 90 days from August 10, 1894. That no part thereof had been paid, but that the defendant had refused, and still refuses, to pay any portion of the amount so adjusted. That the plaintiff had no other insurance on that property, and that the contract mentioned was the only protection which the plaintiff had against loss or damage by fire or lightning upon the property described. The defendant answered such complaint, and by such answer alleges, in effect: That the loss, damage, and destruction of the property suffered by the plaintiff was caused by the wrongful act and negligence of the Chicago & Northwestern Railway Company, a corporation that operated along its right of way adjacent to the plaintiff's said property a locomotive engine in such negligent and defective condition that fire escaped therefrom, and was thereby wrongfully and negligently communicated to the plaintiff's said property, causing the same to be destroyed, which destruction, loss, and damage suffered thereby were the same referred to in the plaintiff's complaint. That, by reason of the railway's wrongful and negligent acts so causing the loss and damage, the railway company became and was liable to the plaintiff therefor, or to this defendant, if it suffered loss thereby. That September 10, 1894, the plaintiff, for a valuable consideration, executed and delivered to the railway company a written instrument, under seal, wherein and whereby the plaintiff settled with the railway company for said loss and damage so caused, and released and forever discharged the railway company from all claims and demands by reason of the loss so caused, as aforesaid, a copy of which release is as follows: “In consideration of the sum of eight hundred and seventy-five ($875) dollars to us in hand paid by the Chicago and Northwestern Railway Company, the receipt whereof is hereby confessed, we hereby release and forever discharge said railway company from all claims and demands which we, or either of us, now have, or may have, against it by reason of buildings, crops, trees, household goods, and other personal property belonging to us being burned by a fire alleged to have been started by said company on or about the 8th day of August, 1894, near Afton, and in full of claims for all damage which we or either of us may have by reason of said fire. Witness our hand and seal at Afton, Wis., this 10th day of Sept., A. D. 1894. George Sims. [Seal.] George C. Antisdel. [Seal.] Parmelia S. Treat. [Seal.] Witness: George L. Treat, Attorney, Alexandria, Minn.” The plaintiff, for an amended reply to such answer of the defendant, admits that he signed the certain paper writing, a copy of which is appended to the defendant's answer herein, being the same as above set forth; and alleges that the goods and property destroyed by fire, mentioned in the plaintiff's complaint, amounted to a sum greatly exceeding the amount of his loss as fixed by the defendant insurance company, added to the amount mentioned in the release in writing; and denies each and every allegation in the answer not admitted; and especially denies that the railway company caused the fire mentioned in the complaint as alleged in the answer. A motion was then made to strike out the second amended complaint and amended reply, but, on hearing the motion, the court ordered that the second amended complaint and amended reply, mentioned, be allowed to stand as the complaint and reply in the action. At the close of the trial the jury, by direction of the court, returned a verdict in favor of the defendant. From the judgment entered thereon accordingly, the plaintiff brings this appeal.

The answer contained no counterclaim, and hence the amended reply to the same was superfluous as a pleading. Rev. St. 1898, § 2661. Nevertheless it was served and treated as a proper pleading, and, so far as it contains admissions of fact in favor of the defendant, it must be regarded as a part of the record in the case...