President of the Insurance Co. of North America v. Swineford , 28 Wis. 257 ( 1871 )

DixoN, C. J.

The record shows that counsel for the plaintiffs in error, defendants below, appeared in open court and asked for a stay of proceedings to enable the defendants to move tbe court to take off tbe default and allow tbe defendants to come in and answer, wbicb stay was ordered by tbe court, and subsequently a further stay on like application. This was an appearance in tbe action, and a waiver on tbe part of tbe defendants of all previous defects in tbe service of process; Upper Mississippi Transportation Co. v. Whitaker, 16 Wis., 223; Keeler v. Keeler, 24 Wis., 522.

Tbe objection tbat no proof was made, upon tbe inquest or assessment, of tbe giving of notice and proofs of tbe fire and loss to tbe company, as required by tbe policy and averred in tbe complaint, is hypercritical and unfounded. There was such proof, quite sufficient upon tbe entry of judgment by default, where tbe failure to answer is an admission of tbe facts alleged in tbe complaint.

Tbe facts shown by tbe affidavits in excuse of tbe default and failure to answer, and as a reason for setting aside tbe judgment and letting tbe defendants in to a trial on tbe merits, are, in our judgment, insufficient. They show a case of inexcusable neglect and delay, and are in some respects inconsistent with good faith and fair dealing on tbe part of tbe defendants or theb agents. The loss occurred more than eight months before tbe action was commenced, and it was over three months after service of process when judgment by default was taken. In tbe meantime, both before and after the commencement of tbe action, negotiations were pending for a voluntary settlement and payment of the loss. The liability of tbe company was not seriously denied, and promises of payment were made as well on tbe part of the general agent of tbe company as of one or more of its special agents. The plaintiff was induced to believe tbat her claim bad been or would be allowed by tbe company, and payment made without objection. It furthermore appears tbat before tbe suit was commenced, and, tbe inference is, a considerable time before, tbe agents of the company — the local one at Eond du Lac, one of tbe general agents for tbe northwestern states at Chicago, and a special agent deputed for tbat purpose — bad fully investigated tbe facts touching tbe loss. It does not appear tbat any new fact or material cbcumstance bas been discovered since those agents made tbeir investigation. Tbe facts are sucb as they ascertained, and as were known by tbem before tbe action was commenced. Witb eight months intervening, and three agents engaged in tbe investigation, tbe defendants should have been prepared at tbe end of tbat time either to pay or put in tbeir answer. There was no good reason for tbeir not having answered. Tbe sickness, disability or business engagements of one of tbe agents at Chicago, was no excuse. His partner was not' sick or disabled, and be bad been upon tbe ground and knew tbe facts. Tbe agent who was sick bad not. Tbe answer might have been prepared under the direction of either of tbe three agents who bad investigated, and have been verified by any one of tbem. Tbe failure to answer was, therefore, tbe result of mere inexcusable negligence on tbe part of tbe company or its agents, unless tbe practice of tbe company of requiring tbe pleadings in actions against it to be sent to tbe home office for examination and advice, made it otherwise. But sucb practice did not necessarily interfere witb or prevent an answer in time ; and if it bad, tbe question would be, whether tbe law should conform to tbe practice of tbe company, or tbe practice of tbe company to tbe law. We think tbe law would prevail in sucb a case, and tbat tbe company must so regulate its business as to conform to tbe law, unless some reasonable excuse is shown.

On tbe whole, we are of opinion tbat no case was made out to justify tbe setting aside of tbe judgment, and tbat tbe order of tbe court below was right.

By ike Court. — Order affirmed.