John R. Davis Lumber Co. v. Home Insurance Co. of New York

The following opinion was filed February 2, 1897: NewmaN, J. The first error alleged is the denial of the-defendants’ first motion for a nonsuit, and compelling a joint. [547] trial. This motion was based on the claim that there was a misjoinder of causes of action and of parties defendant. It is clear that, aside from the provisions of ch. 235, Laws of 1893, it is not permissible to join in one complaint causes of action which do not “ affect all the parties to the action.” E. S. sec. 2647. It is manifest that neither of the causes of action stated in the complaint affects both defendants. Neither defendant is affected, even in a slight degree, by the cause of action stated against the other. So, but for the statute referred to, the objection must be sustained, if properly taken. But the only permissible way to raise the objection is by a demurrer to the complaint on that ground. E. S. secs. 2649, 2654. It cannot be raised by a general demurrer on the ground that the complaint fails to state a cause of action. Nor by a demurrer ore terms, or objection at the trial. Nevil v. Clifford, 55 Wis. 161. It is waived if not taken by demurrer on that ground. Having been once waived, the right to otoject on that ground is gone forever. It can neither be recovered nor revived. So the right to join the two independent causes of action does not at all depend on the validity of ch. 235, Laws of 1893. The defendants have consented. The validity of that act is not involved in this appeal. . The second error alleged is the denial of the defendants’ .motion for a nonsuit at the close of the plaintiff’s testimony. This is upon the ground that the plaintiff had not proved that the premiums had been paid. Eeceipt of the premiums was acknowledged in the policies themselves. The defendants had set up as a specific defense the failure to pay the premiums. No' doubt, the recital of the payment of the premiums, in the policies, was prima facie evidence that they had been paid. Whiting v. Miss. V. M. M. Ins. Co. 76 Wis. 592. The answers admit the execution and delivery of the policies, and seek to avoid them by the affirmative defense of a want of consideration. No doubt, the burden of [548] proving this defense is upon the defendant. If the'premiums had not been in fact paid, yet, as the policies had been delivered to the plaintiff without prepayment, and credit given, they must be held to be in force, subject to the right of the defendants to cancel them by actual notice to the plaintiff, or to an agent authorized to receive it. Whether Winchester was such an agent, so that notice to him was notice to the plaintiff, was the leading question litigated on the trial, and there was, no doubt, sufficient testimony to require this question to go to the jury. But the payment, or otherwise, of the premiums was not the test of the liability of the defendants. The policies had been actually delivered to the plaintiff, and by that fact a credit given. The defendants could cancel them immediately, on the ground of nonpayment of premiums, only by giving actual notice to the plaintiff, or to an agent who was authorized to receive it. For cancellation on other grounds the policy provided for a notice of five days. Whether Winchester was such an agent as had power to bind the plaintiff by accepting notice of cancellation depends upon the terms and conditions of his employment. And there is no presumption that authority remains in the agent, who is not also a general agent to place and manage insurance on his principal’s property, after he has procured and delivered the policy,— to surrender or discharge it. Hermann v. Niagara F. Ins. Co. 100 N. Y. 411; Karelsen v. Sun Fire Office, 122 N. Y. 545; Wilber v. Williamsburgh C. F. Ins. Co. 122 N. Y. 439. It was no case for a nonsuit. Here was- a question for the jury. As stated, the principal contention in the trial court, as here, was over the question whether Winchester had power, by reason of his employment, to bind the plaintiff by his acceptance of notice of the cancellation of the policies, or by his surrender of them for cancellation, under the circumstances shown by the testimony. The extent and scope of his au [549] thority was in dispute. The facts did not raise a conclusive implication of such authority. If he could bind the plaintiff by accepting notice of cancellation, or by surrendering the policies, it is undisputed that this.was done before the fire. In that ease the policies had ceased to be in force before the fire. If he had no such power, the policies were still in force at the time of the fire. So this was the turning point of the controversy. The real scope and extent of his employment was a controverted issue of fact for the jury. It was the office of the special verdict to submit to the jury, by proper questions, this issue of fact. It was the office of the court to answer the questions of law which should arise on the facts found by the jury. The defendants claim that the issues of fact were not submitted to the jury fairly. This is on the ground, mainly, that certain questions which the defendants asked to have submitted to the jury were not submitted in the form requested. No doubt, the defendants were entitled to have this issue submitted to the jury, in substance, as they requested. The form in which it shall be submitted is very much in the discretion of the trial court. On this main issue the questions proposed by the defendants and those submitted by the court differ so little in substance that it is a matter of considerable nicety to discriminate between them. The questions áibmitted seem to have all the substance of the questions proposed, and to differ from them very little except in mere form. A more specific objection is that the court submitted questions of law to the jury. And it is true that the questions submitted involved matters of mixed law and fact. It is not always possible to state questions of fact so cleanly as that they shall involve no implication of law, Indeed, the questions proposed by the defendants have the same infirmity, to an equal, perhaps greater, degree. One of them is this: “Did the business arrangement between the plaintiff and Winchester authorize Winchester [550] bo receive notice of cancellation of policies for plaintiff?” That seems to be a question of law seriously complicated with the facts. The special verdict fairly submitted this ■controversy to the jury, and the verdict is fairly supported by the evidence. The defendants complain that their special instructions were not given. A careful perusal of the charge shows that, so far as they were applicable, the substance of all these requests to charge were given in the general charge, fully and clearly, upon all points bearing on this contention, leaving little, if anything, to be desired. By the Court.— The judgment of the circuit court is affirmed on both appeals. A motion for a rehearing was denied April 7, 1897.