77 Wis. 336 | Wis. | 1890
It seems to us that there is no room to ■doubt as to the nature of this action. The complaint is clearly to recover the amount due on a policy of insurance. It states what property was insured hy the defendant company, the amount of the insurance, the destruction of the insured property hy fire, the furnishing of proofs of loss, and demands judgment against the company for the amount of the loss, viz., the specified sum of $928, with interest. It is a plain, ordinary action at 'law upon a contract of insurance. It is true the complaint not only demands judgment for the sum just stated, but also asks judgment for costs and disbursements, “and for such other or further order, judgment, or relief as may be equitable.” But this clause for other relief than a money judgment does not change the action to one equitable, nor render the complaint demurrable. This court has followed the rule, in a case of doubtful pleading, of looking at the prayer for relief to determine the nature of the action; but that rule is one only resorted to in case of actual doubt upon the facts set forth or statements made. But there is nothing uncertain, ambiguous, or doubtful, upon the allegations of the complaint. It is a plain action at law to recover the amount due upon the policy of insurance. There may be unnecessary matter stated and relief asked not strictly legal, but this redundant matter does not vitiate the complaint or change the character of the action. This point we deem so clear as to require no further comment.
The principal property insured in this case was a dwelling-house, which constituted the homestead of the insured. The property was destroyed after the death of the insured and while occupied as a homestead. The children or heirs at law of the insured, together with the widow, who sues as such widow and also in her representative capacity as ad-ministratrix of her husband’s estate, and certain mortgagees to whom a portion of the loss is made payable, have been
The policy contains this clause: “XVTI. It is furthermore hereby expressly ¡Provided and mutually agreed that no suit or action against this company for the recovery of any claim for loss by virtue of this policy shall be sustained in any court of law or chancery, unless an award of damages by arbitrators as herein provided for shall first have been returned, and unless such suit or action shall be commenced within the term of twelve months next after the fire shall have occurred; and in case any such suit or action shall be commenced against this company without such award shall have been returned, or after the expiration of twelve months next after such fire shall have occurred, in either case it shall be taken and deemed as conclusive evidence against the validity of the claim thereby attempted to be enforced.” There is an allegation in the complaint that the company has at all times denied all liability to pay any sum whatever on the policy, but there is no averment that any award of damages by arbitrators has been made. It is insisted that such an award was essential and constituted a condition precedent to the right to bring an action on the policy. "Ye cannot adopt this construction of the instrument. The next preceding clause in the policy provides, in substance, in case a difference shall arise touching the amount of any loss or damage, it shall be submitted to the judgment of arbitrators mutually chosen to determine
The effect of such conditions in policies of insurance has frequently been considered by courts, and we know of no case which holds that a stipulation in-the policy to arbitrate a certain matter might be extended so as to embrace other questions not fairly within such stipulation. See Phœnix Ins. Co. v. Badger, 53 Wis. 283; Canfield v. Watertown F. Ins. Co. 55 Wis. 419; Oakwood R. Asso. v. Rathborne, 65 Wis. 177.
It follows from these views that the order of the circuit court, overruling the demurrer to the complaint, must be affirmed, and the cause be remanded for further proceedings according to law.
By the Court.— It is so ordered.