32 Wis. 182 | Wis. | 1873
The appeal is from so much of the order as overruled the demurrer of the plaintiff to that part of the answer, separately pleaded, setting up a counterclaim to the causes of action declared on by the plaintiff. With the first paragraph, or so much of the answer as attempted to set up the same or nearly the same facts by way of defense, we have nothing to do, the demurrer of the plaintiff thereto having-been sustained by the circuit court, and no appeal taken by the defendant.
Counsel for the defendant seek to make out and sustain the counterclaim on the ground of laches in the plaintiff by his failure promptly to make out and present proofs of the loss of fire, and also by his omission to prosecute the insurance companies with diligence by action, after the proofs of loss were made and presented, as it is claimed by the defendant and alleged in the answer the plaintiff had agreed to do. Another ground of counterclaim is, the damages averred to have been
If, notwithstanding all that is averred in tbe answer, it still appears, or may be reasonably and justly inferred from tbe facts stated, that tbe defendant, at tbe same time that be complains of the negligence and inattention of tbe plaintiff, bad it fully in bis own power to apply tbe remedy or avoid tbe evil; if it appears that it was all tbe time competent for the defendant himself to have done tbe acts which be complains of tbe plaintiff for omitting to do, namely, to make tbe proofs of loss, bring suits against tbe insurance companies, and accept tbe sum offered by them in compromise and adjustment of tbe loss; if it appears that tbe plaintiff did not stand in the way of or wrongfully or improperly binder or prevent tbe defendant from doing those things; and if, finally, it appears that tbe defendant was equally at fault and equally careless and negligent with tbe plaintiff in matters in which they were mutually concerned and interested, and as to which each stood on an equal footing with tbe other with respect to bis power and authority to move and to act; in such a case, we say, it would be a most extraordinary rule of law which would bold tbe plaintiff responsible in damages to tbe defendant for bis, plaintiff’s, misconduct. and would at tbe same time exonerate the defendant from all tbe consequences of bis, defendant’s, equal wrong and negligence contributing to tbe same loss or injury.
And this is tbe way tbe supposed counterclaim set up in tbe answer strikes our minds. Notwithstanding tbe answer alleges that the plaintiff agreed to make the proofs in' case of destruction of the mill by fire, it was still competent for tbe defendant to have done so, and be was equally and more interested in doing it than tbe plaintiff. Tbe inference rather is, that tbe defendant was tbe only proper party to make tbe proofs, for the answer speaks of tbe terms, stipulations and conditions required of tbe assured, and tbe defendant was “the insured.” Tbe
The answer alleges that the plaintiff neglected to urge or compel payment by suit at law or otherwise, but presents no fact in extenuation or acquittal of the inactivity and delay of the defendant in the same respects. The defendant was the party primarily interested — the insured, to whom the policies ran,— and it was competent for him to urge payment, and to bring suits in his own name, making the plaintiff a party defendant to the actions in case he refused to join as plaintiff. It was as much the duty of the defendant to be vigilant and active as it was that of the plaintiff. The answer does not even aver that the defendant ever requested the plaintiff to bring suit or to join him, the defendant, in one.
And with regard to the offer made by the insurance companies in compromise or satisfaction of the loss, nothing appears why the defendant might not himself have accepted it, or why he did not. It is agreed by counsel on both sides, that it was of a sum exceeding the amount of the plaintiff’s claim, or of the indebtedness of the defendant to him at that time; and, if the plaintiff refused to accept, the defendant might have accepted for him, and directed a payment or tender of the amount to him by the insurance companies. If the defendant had done this, and then the plaintiff had refused to accept or receive the money, the remedy of the defendant against the plaintiff would have been complete. • The plaintiff had no interest in the funds or claims against the insurance companies beyond the amount of the debts due him from the defendant,
That portion of the order appealed from must be reversed, and the cause remanded for further proceedings according to law.
By the Court.— It is so" ordered.
