Wunderlich v. Chi. & N. W. Ry. Co.

• Decision Date: 14 April 1896
• Parties: WUNDERLICH ET AL. v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

93 Wis. 132

66 N.W. 1144

WUNDERLICH ET AL.

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Langlade county; John Goodland, Judge.

Action by George H. Wunderlich and others against the Chicago & Northwestern Railway Company for the alleged negligent destruction of property by fire allowed to escape from a defective engine. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

The complaint alleges that the plaintiffs Wunderlich on the 12th of September, 1894, owned and operated a sawmill and general store at Elmhurst, Langlade county, and that on said day their sawmill and store, and a large amount of lumber, valued in all at over $50,000, was destroyed by fire, which fire was caused by sparks negligently allowed to escape from a defective engine operated by the defendant. The complaint further alleges that plaintiffs Palatine Insurance Company and 11 other insurance companies, who are joined as plaintiffs, had, at the time of said fire, policies of insurance, in full force and effect, “upon the said property of the plaintiffs Wunderlich, against loss and damage thereto by fire,” to the amounts respectively named in the complaint, and that the plaintiffs Wunderlich have received from the several companies the full amount of their several policies, except that two companies who are named have made partial payments only. Judgment is demanded for the full value of the property destroyed. To this complaint the defendant demurred on the ground (1) that there is a defect of parties plaintiff, in that the complaint states no cause of action in favor of the said insurance companies (naming them); (2) that several causes of action have been improperly united; (3) that the complaint does not state facts sufficient to constitute a cause of action; (4) that the complaint does not state facts sufficient to constitute a cause of action in favor of the said plaintiff insurance companies. The demurrer was overruled, and the defendant appealed.Fish & Cary, for appellant.

John E. Martin and Bouck & Hilton, for respondents.

WINSLOW, J. (after stating the facts).

Fairly and reasonably construed, the complaint charges that the property of the plaintiffs Wunderlich was destroyed by a fire negligently kindled by the defendant, and that the plaintiff insurance companies had previously issued to the plaintiffs Wunderlich contracts of insurance against fire upon said property,...