71 Wis. 411 | Wis. | 1888
This action is brought to recover the penalty provided for in sec. 1920, R. S., of $500, on account of the failure of the defendant company and its officers to prepare and deposit in the office of the commissioner of insurance a statement of the business of said corporation, etc., during the year, etc., required by said section, in the month of January, 1884, and-of an additional $500 for every month thereafter. There was no appearance of the defendant company, and judgment was rendered, on default and proofs, for $16,500 and costs. From that judgment this appeal is taken.
The only error assigned is that the complaint failed to state a cause of action against said company for the penalty provided for in the above section. There can be no question but that the decision in the recent case in this court, of State v. U. S. Mut. Accident Ass’n, 69 Wis. 76, rules this case. The two cases are substantially alike, mutatis mutandis, and the provisions of the statute relating respectively to these two kinds of insurance companies are in pari materia. The learned counsel of the respondent concedes that sec. 1920, relating to foreign fire insurance companies, and sec. 1954, R. S., relating to foreign life or accident insurance companies, are substantially alike. The other sections referred to in the opinion in that case to sustain the construction given to sec. 1954, that it related only to foreign companies that had been licensed to do business in this state, are substantially the same as other sections respecting the latter companies. In both cases the same foreign insurance companies that are required to file such statement and are liable to the penalty for failure to do so, are made liable to have their licenses or certificates authorizing them to transact business in this state revolted by the commissioner.
But it is contended that said case, aside from the above substantial similitude to the present case, does not rule this case, in consequence of certain legal principles applicable to the form and manner in which the same defect of the
The third and fourth positions assumed by the learned counsel maybe considered together: (3) That the defendant insurance company was not licensed implies a negative that the plaintiff need not aver, but which must be proved by the defendant; and (4) that the complaint should receive a liberal construction, and that the averment of “ doing business in this state ” implies lawful authority. This last suggestion was made and disposed of in the other case. There is no such rule as allows a complaint upon an appeal from the judgment to be more liberally construed as to material averments than upon a demurrer. This is an action for a penalty, and every fact necessary to show that the defendant has incurred the penalty must be stated. Such material facts cannot rest in presumption or mere inference, or appear by implication. There is no rule of liberal construction that will dispense with the statement of every fact that creates tjie liability. In this case the complaint should have stated all such facts as are necessary to show that the defendant company or its officers were required to make such annual statement, the failure to make which would make the company and its officers liable to the penalty. The company was not required to make such statement unless licensed to do business in this state. Therefore such material and essential fact must be stated. It is not a negative, but a positive, averment. In the case of State v. Egerer, 55 Wis. 529, the fact necessary to be stated to make the defendant liable to the penalty was that he had been notified in a certain way to remove the encroachment. Mr. Justice Lyon says: “ The question is, therefore, whether the facts stated specifically in the complaint show a cause of action against the defendant for the penalty claimed. A person is liable to the penalty of the statute
This is sufficient to dispose of the positions assumed by the.learned counsel of the respondent in his brief and urged by his able and plausible argument to show that this case is not ruled by the previous decision. The complaint is fatally defective for not having shown that the defendant company was authorized by license to do business in this state, and therefore required to make the statement provided for in sec. 1920, N. S., and liable for the penalty fixed in said section for the failure to do so.
By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.