101 Wis. 586 | Wis. | 1899
The second amended. complaint in this action alleges, in effect, that August 11, 1898, the defendant insured the plaintiff against loss or damage by fire or lightning for the period of five years, to the amount of $115, as follows: On his dwelling house, $500, on his barn No. 2,
The defendant answered such complaint, and by such answer alleges, in effect, that the loss, damage, and destruction of the property suffered by the plaintiff was caused by the wrongful act and negligence of the Chicago & Northwestern Railway Company, a corporation that operated along its right of way adjacent to the plaintiff’s said property a locomotive engine in such negligent and defective condition that fire escaped therefrom, and was thereby wrongfully and negli
“ In consideration of the sum of eight hundred and seventy-five ($875) dollars to us in hand paid by the Chicago & Northwestern Railway Company, the receipt whereof is hereby confessed, we hereby release and forever discharge said railway company from all claims and demands which we, or either of us, now have, or may have, against it by reason of buildings, crops, trees, household goods, and other personal property belonging to us being burned by a fire alleged to have been started by said company on or about the 8th day of August, 1894, near Afton, and in full claims for all damage which we or either of us may have by reason of said fire.
“ Witness our hand and seal at Afton, Wisconsin, this 10th day of September, A. D. 1894.
“Witness: Geoege Sims [Seal]
Geoege L. Teeat, Atty., Geoege C. Antisdel [Seal]
Alexandria, Minn. Paemelia S. Teeat [Seal].”
The plaintiff, for an amended reply to such answer of the defendant, admits that he signed the certain paper writing, a copy of which is appended to the defendant’s answer herein, being the same as above set forth; and alleges that the goods and property destroyed by fire, mentioned in the plaintiff’s
At the close of the trial the jury, by direction of the court, returned a verdict in favor of the defendant. From the judgment entered thereon accordingly the plaintiff appeals.
The answer contained no counterclaim, and hence the amended reply to the same was superfluous as a pleading. Stats. 1898, sec. 2661. Nevertheless it was served and treated as a proper pleading, and, so far as it contains admissions of fact in favor of the defendant, it must be regarded as a part of the record in the case. It squarely admits that the plaintiff signed the release. That release is in writing, and signed by the plaintiff and two others, September 10, 1894, and speaks for itself. By admitting that he signed the release, he necessarily admitted all the facts stated in the release. Consequently he admitted that, in consideration of $775 paid by the railway company to the plaintiff, he thereby released and forever discharged the railway company from all claims and demands which he then had or might have against it by' reason of the loss of property belonging to him and burned by a fire alleged to have been started by the railway company on or about August 8, 1894, near Afton, and in full of claims for damage which he might have by reason of such fire. The second amended complaint alleges that the insured property was destroyed by fire August 8,1894. The amended reply alleges, and therefore admits, that the prop
The question recurs whether upon such admitted facts, and notwithstanding such settlement and discharge of the railway company, the plaintiff can nevertheless maintain this action to recover damages for the same loss against the defendant. The law on the subject seems to be pretty well settled. It has been held by this court that “an insurance company which has been compelled to pay the owner for property destroyed by fire has a right of action against the person who wrongfully caused the loss, without any assignment of such right by the assured, and, under our statutes, may sue in its own name.” Swarthout v. C. & N. W. R. Co. 49 Wis. 625; Wunderlich v. C. & N. W. R. Co. 93 Wis. 132; Hustisford F. M. Ins. Co. v. C., M. & St. P. R. Co. 66 Wis. 58; Connecticut F. Ins. Co. v. Erie R. Co. 73 N. Y. 399. Had the defendant in this action paid to the plaintiff the in-
True, the plaintiff’s amended reply denies that the railway company caused,the fire mentioned in the complaint and alleged in the answer, but such denial does not conclude the defendant. It is still admitted of record in this case that the railway company paid to the plaintiff $175 to settle his claim against that company for the property insured and burned by a fire alleged by him to have been started by that company. The release did not confine itself to so much of the plaintiff’s claim for damages as was not covered by the insurance, as in the Pennsylvania case cited. Insurance Co. of N. A. v. Fidelity T. T. Co. 123 Pa. St. 523; S. C. 10 Am. St. Rep. 546. The language of this release is sweeping, and releases and forever discharges the railway company from any and all claims by reason of the loss of the property. It expressly covers all claim which the defendant might have on making payment of the loss. The defend•ant would have no right of action against the railway company in case it should make payment. Such right of action has been taken away and destroyed in advance by the plaintiff’s release. It is no answer for the plaintiff now to allege that the fire was not caused by the railway company, and hence that the defendant would have no right of action against that company upon paying the loss. It is enough to know that the plaintiff procured from that company $775 •on the claim that it did cause the fire, and is now seeking to deprive the defendant of the benefit of that payment by .alleging that it did not cause the fire.
By the Court.— The judgment of the circuit court is affirmed.