Arnet v. Milwaukee Mechanics' Mutual Insurance

22 Wis. 516 | Wis. | 1868

The following opinion was filed at the September term, 1867:

Dixon, C. J.

A re-hearing having been granted in this case, further examination has convinced me that I was correct in my first impressions, expressed in the former opinion, upon the main question involved. I am now satisfied that of actions coming within the provisions of the first section of the act (Private Laws of 1855, chap. 80), the circuit court of Milwaukee county has exclusive jurisdiction. The authorities now cited, but not before brought to the attention of the court, seem fully decisive of the question. They are quite numerous, and directly applicable to the point under consideration. They show that, instead of the remedy in the. circuit court of Milwaukee county being cumulative, it is exclusive, according to the maxim, that when the law has provided a remedy in a new case, the party seeking redress is confined to that specific remedy, and has no general remedy at common law. The authorities cited are as follows: Boynton v. Middlesex Mut. Ins. Co., 4 Met., 212; Indiana Mut. Ins. Co. v. Routledge, 7 Porter (Ind.), 25; Williams v. Fire Ins. Co., 29 Maine, 465; Bartlett v. Union M. F. Ins. Co., 46 id., 500; Portage Mut. Ins. Co. v. Stukey, 18 Ohio, 455; Nevins v. Rockingham Fire Ins. Co., 5 Foster (N. H.), 22; and Portage Mut. Ins. Co. v. West, 6 Ohio St., 599.

But while these authorities show that such is the rule by which the act is to be construed, they furthermore show that for the company to be within the immunity or privilege conferred, it must appear that all the conditions of the act upon which the specific remedy is made to depend, have been strictly performed on the part of the company. If anything has been omitted, which, by the charter, the company is required to do in order to make the special remedy applicable, then the other party is remitted to the general law for a remedy as in other actions for breach of contract. Yow one of the conditions of this act, upon which the party insured is required to bring his action in the circuit court of Milwaukee county, is that the directors of the company, within thirty days after notice of the loss, upon examination and view of the testimony taken, or to be taken, either allow such claim in whole or in part, or reject the whole. The complaint avers that due notice of the loss was given to the company, The answer, or first defense, which is all that is contained in the printed case, does not controvert this averment, but proceeds to set out the first section of the act under consideration, and then, among otter things, avers “that the directors rejected the claim of the plaintiff for loss and damage mentioned in the complaint.” The relief demanded is, that the action he dismissed for want of jurisdiction in the court to try and determine the same. The answer is defective in this, that it does not allege that the directors rejected the claim within thirty days after notice of the loss; for unless they did so, the jurisdiction of the circuit court of Milwaukee county is not, by the terms of the act, exclusive, and the action may he brought in any other court of competent jurisdiction. The answer, being in the nature of a plea to the jurisdiction, is to he strictly construed, and no presumptions can be indulged in aid of a defective averment. "We cannot presume that the directors “ rejected the claim ” within thirty days after notice of the loss; and if they rejected it after that time had expired, then the jurisdiction of the circuit court of Washington county was complete. On this ground, therefore, I am still of opinion that the order sustaining the demurrer was correct, and that it should be affirmed.

By the Court. — Order affirmed.