Fitzsimmons v. City Fire Insurance , 18 Wis. 234 ( 1864 )

By the Court,

Cole, J.

We consider the portion of the answer demurred to as clearly insufficient in setting forth a complete defense to the action, for reasons which were anticipated by the counsel for the appellant. The policy declared on contains the clause, that “ in case of any other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy, the assured shall not, in any case of loss or damage, be entitled to demand or receive of this company any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on said property.” Now if all the policies contained a similar clause, then it is very clear that the principle of contribution would not apply to the companies, if either should pay more than its proper proportion of the loss. Nor could one company, under such circumstances, derive any benefit from an excess of payment made by another company. Eor it is very evident that if one company should pay more than its rateable portion of the loss, it would be a matter solely between itself and the assured, and it could not call upon the other companies to contribute. This would seem to be the irresistible inference in construing such stipulations. But we are not without authority upon the point. In Lucas v. Jefferson Ins. Co., 6 Cow., 635, this direct question was presented, and the court held that where several policies contained such a clause, the companies were all and each liable to pay the rateable portion mentioned in the clause, though it might happen that some had paid more than their share, and even enough to cover the whole loss or damage sustained by the assured. Eor the court say that if, notwithstanding such a clause, one company voluntarily pays the whole amount of its subscription toward the plaintiff’s loss, and in excess of its rateable share, yet it could not for that reason claim contribution of the other companies upon any ground ; that the answer to such a claim would be, that it had paid in its own wrong, and its redress must be against the assured, who had received more than he was entitled to demand. A company might naturally pay more than a party could recover, rather than incur the expense and trouble of litigation. And if it should, there would be no justice or equity in bolding that some other company might take advantage of such payment and apply it in discharge of its just share of the loss. For these obvious reasons, the appellant cannot derive any benefit from the payments made by the other companies. If, on the contrary, there was a double insur anee, so that the principle of contribution would apply, it was the duty of the appellant to so allege in the answer, in order to make the defense available.

Again, the appellant contends that if the answer is not sufficient as a total defense, it is good as a partial defense to the action. But the difficulty with this position is, that this portion of the answer professes and assumes to answer the entire cause of action. It is not relied on as a partial but as a complete defense, and we have seen that for this purpose it is insufficient. Now under the old system, where a plea professed in its commencement to answer the whole cause of action, and after-wards answered only a part, the whole plea was bad. This rule was elementary; and, upon general principles, we do not see why it is not applicable to pleadings under the code. If a party has a partial defense to an action, he should set it up and rely on it as such, and not as a complete and entire defense.

It is further claimed that it was incumbent on the plaintiff to state' in the complaint that, before issuing the policy sued on, the defendant had complied with the laws of this state requiring foreign insurance companies to make and file certain statements with the secretary of state and obtain his certificate of authority, &c. See Laws of 1859, chap. 190. We do not think such an averment necessary. If the policy is void because issued contrary to law, it is a proper matter of defense. It is not fair to assume that the company, in the transaction of of its business, has been violating the laws of this state, but the contrary presumption arises.

We think the demurrer was properly sustained, and the order of the circuit court is therefore affirmed.