Benedix v. German Insurance of Freeport

78 Wis. 77 | Wis. | 1890

Cassoday, J.

It is said that the complaint fails to allege that proofs of loss were forwarded to the defendant within sixty days after date of loss. The complaint does allege, in effect, that immediately after the fire the plaintiffs forthwith gave notice to the defendant of the loss. It also states, generally, that the plaintiffs duly performed all of the conditions of said contract to be performed on their part. This fully satisfies the alleged defect. Sec. 2674, E. S.; Boardman v. Westchester F. Ins. Co. 54 Wis. 365; Reif v. Paige, 55 Wis. 502; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 86; Bank of River Falls v. German Am. Ins. Co. 72 Wis. 535. The case of Carberry v. German Ins. Co. 51 Wis. 605, relied upon by counsel for the defendant, is not applicable, since in that case the loss was not payable until ninety days after notice and proof thereof, and there was no allegation that it had become due. Scheiderer v. Travelers Ins. Co. 58 Wis. 18. If the- plaintiffs failed to make such proofs within the time named, it worked a forfeiture, and that, under the complaint, was only avoidable by way of answer. Redman v. AEtna Ins. Co. 49 Wis. 431; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 90.

It is claimed that the complaint is defective in not alleging that the defendant had not, within sixty days after receiving such proofs of loss, given notice of its option to rebuild or repair the building, or that such sixty days had elapsed before the commencement of this action. But it is alleged, in effect, in addition to what has already been stated, that the defendant had neglected and refused, and still does neglect and refuse, to pay the sum due on the policy, or any part thereof, “ although more than sixty days have elapsed since said notice and due and satisfactory proofs of loss were duly furnished to the defendant company.” We think it sufficiently appears, from this language, that such sixty days had elapsed since such proofs were so furnished, as well as since the furnishing of such notice; and if such option was in fact exercised, then it was a matter of defense, on the principle already stated.

Counsel insist that the clause thus quoted must be construed with reference to the date of the verification to the complaint, which was August 14, 1889, and that when so construed it fails to allege that such sixty days had elapsed when the action was commenced, which he asserts was July 2, 1889. But a demurrer to a complaint is only authorized as to such defects as “ appear upon the face thereof.” Sec. 2649, R. S. This demurrer is specially limited to such defects. It is settled by numerous adjudications in this court that such demurrer cannot even be aided by facts in the record not appearing upon the face of the complaint. Zcegel v. Kuster, 51 Wis. 40, 41; Smith v. Janesville, 52 Wis. 683; Magdeburg v. Uihlein, 53 Wis. 166.

By the Court.— The order of the circuit court is affirmed.