Bonner v. Home Insurance Co. , 13 Wis. 677 ( 1861 )

By the Court,

DixoN, C. J.

The amendments proposed by the respondent upon the trials were properly allowed. By them no change or departure from the causes of action originally set forth, was asked. The causes remain the same, and the offer to amend amounted to nothing more than a proposition to set them out with greater legal exactness and certainty. It was not, as is contended by the counsel for appellants, a proposal to depart entirely from the grounds of complaint first taken. Those grounds, which were already in part correctly described, continued as before. The nature of the actions was unchanged. They were still actions for the recovery of the same sums of money upon the same policies of insurance. Enough had already been correctly stated, so that there could have been no mistake or misapprehension in this respect, and so that it would seem to have been impossible for the appellants, their agent or attorneys, to'have been misled. The leading facts constituting the causes of complaint, such as the dates, amounts and numbers of the policies, the times of the commencement and expiration of the risks, the description and location of the property insured, and the names of the contracting parties, were accurately stated in the first instance. Only the incidental and less prominent features of the transactions, such as the conditions and provisos contained in and annexed to the policies, had been omitted. Under these circumstances, how can it, with any reason, be said, that the offer of the policies had no tendency to prove the causes of action alleged, or that after they were produced, those causes were “unproved, not in some particular or particulars only, but in their entire scope or meaning?” And how can it be said that the appellants were “actually misled to their prejudice in maintaining their defenses upon the merits ?” It appears to us that neither of these things can be rationally affirmed; that tbe policies clearly tended to establish tbe causes of action so far as they bad been stated; and that they were emphatically cases in which the causes of action were unproved in some particulars only, and not in their entire scope and meaning ; and that, with the principal facts already so distinctly averred, the appellants could not truthfully say that they had been deceived. The facts stated had no such tendency, but the very opposite. If they -were deceived, it must have been because they were obstinately blind to the truths contained in the complaints, and not because of their mistakes or imperfections. But, aside from the allegations of the • complaint, which, for all ordinary purposes, defined the causes of action as clearly and certainly as if they had been technically full and complete, it appears from the answers and verifications that the appellants and their agents well understood what they were called to defend. Several special defenses, applicable to the real causes of action as they appeared after the amendments were made, Were set up by the answers and verified by the oath of the agent As against these things, it would have been a false and idle pretense if he had claimed that the appellants were misled by the averments of the complaint, or that he was surprised by the offer of the policies in evidence ; and it is creditable to his honesty and integrity as a man that he did not do so. It would have been equivalent to saying that matters with which he was elsewhere perfectly familiar, were wholly unknown to him when in the presence of a court. He testified only “ that he was taken by surprise by the amendment just allowed in this action.” In other words, he was surprised that the court should be governed by the plain requirements of the statute. Unfortunately for his enterprise, the object of which was undoubtedly to delay the speedy and fair administration of justice, this was not the kind of surprise which the legislature contemplated, and the affidavit was rightly rejected. The appellants were bound to take notice that the court possesses the power to amend, and that it would, in proper cases, exercise it liberally in furtherance of justice and to prevent unnecessary delay and expense. It was for them to govern their action accordingly, and to prepare tbeir defense when good faith and fairness to tbe opposite party would require them to do so. A fair interpretation and proper observance of the provisions of the statute demand this, and exclude the idea that either party may repose upon technicalities for the purpose of defeating or delaying the action or defense of the other. See Gillett vs. Robbins, [12 Wis., 319.] The authorities cited by the counsel for the. appellants by no means conflict with the views here taken. They were clearly cases not coming within sections 33 and 34, chap. 125, R. S., in which the courts were authorized to disregard the variance, or to order an immediate amendment without costs, but were of the class provided for in section 35, in which the cause of action to which the proof was directed, was “ unproved, not in some particular or particulars only, but in its entire scope and meaning.” As if the plaintiff should proceed in his complaint as upon a promissory note, and upon the trial should ask a recovery upon a covenant or a bill of exchange; or as if he should set forth a cause of action for fraud or deceit, and ask a judgment upon proof of a breach of contract, and the like. In these and all similar cases, there would be an entire departure from the cause of action set out, and it is to such that the section obviously applies. In Egert vs. Wicker, 10 How. Pr. R., 193, the plaintiff, by his amendments? proposed to change the entire gravamen and essence of his complaint. A deed which was originally affirmed to be good, was to be declared void because made to hinder and defraud creditors. The averments with regard to the recording of the mortgage were to be wholly changed; and the mortgage itself was to be averred inoperative and void upon entirely different grounds. Such a radical and complete change in the point of attack was very properly held to ■ be inadmissible. So in Cottrell vs. Conklin, 4 Duer, 45, the plaintiff, having complained against the defendant as the guarantor of certain promissory notes, offered proof which tended only to show that he was an indorser. The variance was material and fatal. For, as the court observe, notwithstanding a partial resemblance, the difference between a contract of guaranty and a contract of indorsement are so- wide ail<^ essent^’ ^at ^ imP0SSible to say that tbe allegation. of tbe one contract as tbe canse of action, is sustained by proof of tbe existence of tbe other. And in Prindle vs. Aldrich, 13 How. Pr. R., 466, altbongb tbe departure was less striking, it was nevertheless sufficiently obvious. It was tbe difference between an action upon an account for goods sold and delivered, which upon a dispute bad been compromised and agreed upon at certain fixed sums which tbe defendant bad promised to pay to tbe plaintiff in full, and an action upon an open and unsettled account for tbe same goods, in which each item was tbe subject of controversy and proof. Tbe action was upon an open account, which tbe testimony showed bad been closed and stated at a certain sum; and although tbe plaintiff was permitted to amend upon terms, still it was considered that within tbe provisions of tbe Code requiring a plain and concise statement of tbe facts upon which a recovery is sought, the change was as great as if tbe plaintiff bad been allowed to change a complaint for goods sold and delivered, to one upon a promissory note given on settlement, where there was a dispute in regard to tbe claim. None of these cases sustain tbe position of counsel, and they are all consistent with tbe ruling of the circuit court.

If tbe proper objections bad been made, tbe receiving of tbe preliminary proofs furnished by tbe respondent to tbe companies, as general evidence in tbe actions, would have been erroneous. But as those proofs were competent for tbe purpose of showing that tbe condition of tbe policies bad, in that respect, been complied with, and as the objections were general, no advantage can now be taken of them. The rule is universal, that when tbe evidence offered is competent for some purposes, but not for others, tbe party objecting or desiring to limit its effect, must distinctly specify tbe grounds of bis objection, and then if they are not obviated by proper instructions to tbe jury, tbe error will be corrected on appeal.

Tbe testimony of tbe witness Durand, as to tbe contents of tbe forwarding book kept at tbe railroad station at Zanes-ville, Ohio, whence tbe respondent claimed to have shipped a large portion of tbe goods alleged to have been destroyed by tbe fixe, was properly rejected; , not, however, because secondary evidence, in such cases, is wholly but for the reason that the custom of that company with regard to such books, and the manner in which that, in particular, was kept, were not sufficiently established. The rule would be entirely too loose, and a wide door to fraud and imposition would be opened, if such secondary evidence were admitted upon mere proof of the general usage of railroad companies. Had the custom of the company, and the general accuracy of the book, been first proved, we are inclined to believe that the evidence should have been admitted. If this had been done, and the book itself produced in court, it seems clear that it should have been received. It would not have been rejected as immaterial. As an authentic source of information in regard to some of the facts collaterally put in issue, it would have had a most important bearing upon the cases. But as the book was not within the control of the parties, and was out of the reach of the process of the court, and as it was evideutly such a document as the railroad company would not willingly part with, it would seem that these circumstances ought to constitute a sufficient foundation for admitting secondary evidence of its contents. Such being the best evidence which the party could possibly produce, it appears to us that it ought, from necessity, to be received. At all events he would be bound to go no further than to show that the railroad company refused to deliver it. 3 Monroe, 532; 9 Cowen, 115; 7 Pick, 10; 3 Dess. Eq., 290; 3 Martin (N. S.), 287; 5 Day, 298; 13 John., 58.

It is very evident to us that the judge erred in giving the third instruction asked by the respondent’s counsel. By the eleventh condition of insurance annexed to the policies, it was stipulated, among other things, that the insured should, if required, submit to an examination, under oath, by the agent or attorney of the company, and answer all questions touching his knowledge of anything relating to such loss or damage, or to his claim therefor, and subscribe such examination, the same being reduced to writing; and until such examination was had, being required, the loss should not be deemed payable. It was proved, without dispute, that suck examination was, in due time, required; that it was, in part, bad, reduced to writing, but not subscribed, in tke month of November, 1859, and, without objection on the part of the respondent, adjourned for two or three weeks, when it was to be resumed and completed. On the 6th of December, the agent called upon the respondent for. that purpose, when he refused to submit to a further examination, and also to sub scribe that which had been already taken. The judge charged that the respondent was obliged to submit to but one examination, and that if the agent undertook to make it, and he answered all questions then put to him, and was ready at that time to subscribe to the examination so made, he could not afterwards be required to submit to a further examination, or to subscribe that which was so taken. No doubt the companies should be held to a reasonable and just exercise of the privilege reserved, but the rule here laid down is too inflexible and severe. It would preclude an adjournment for the shortest space of time and for whatever cause, and often render the stipulation nugatory and useless. It should be construed so as to favor the objects intended, and not defeat them. And, without determining how often, or under what circumstances, the agent would be entitled to adjourn or renew the examination, we are of opinion, upon the facts before us, that he was entitled to proceed with it in December, and that the refusal of the respondent was captious and unwarranted. The adjournment for that period of time must be presumed to have been made with his consent, as no objection appears to have been taken to it. The judge, therefore, should have dismissed the actions as prematurely commenced; for until the examination was had, the losses were not, by the terms of the policies, due and payable.

Judgments reversed, and new trials awarded.