Trustees of St. Clara Female Academy v. Northwestern National Insurance

Winslow, J. The defendants are entirely right in their claim that an ordinary contract of fire insurance is a mere contract of indemnity. Seamans v. Knapp-Stout & Co. Company, 89 Wis. 171. The fact (if it was a fact) that plaintiffs had been indemnified for their loss by the contractor, Mc-Alpine, was not, however, pleaded by the defendants in their original answer, although the building had been rebuilt at that time, and the defendants were as fully informed with regard to the alleged indemnification and the terms of the building contract at that time as they ever were. This defense not having been pleaded, it was held by this court, on the last preceding appeal, to be unavailable. 98 Wis. 257-259. Thereupon, and just upon the eve of a new trial, the defendants moved to amend their answers, upon which they had stood for more than three years, during which two trials had been had in the circuit court and two hearings upon appeal in this court, and add thereto the defense of indemnification, based upon facts which existed and of which they were informed at the time they served their first answers. Such tardy applications to amend the pleadings, and introduce new causes of action or defenses which have been long known to the moving parties, are not regarded with special favor by the courts. Ryan v. Hockford Ins. Co. 85 Wis. 573. When such applications are denied in the exercise of the discretion of the court, the order will not be reversed by this court unless it appears that there was an abuse of discretion. Phœnix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669. We do not think there was an abuse of discretion in denying the application in the present case. We do not place this decision entirely on the ground of the long and unexplained delay, but upon a ground more nearly approaching the merits, which will be briefly stated. As has been said, the contracts of insurance are contracts of indemnity. The proposed defense was a defense that the trustees had been indemnified by the rebuilding by the [467] contractor at his own expense, pursuant to the terms of the contract. Now, the rebuilding of the building alone would not constitute indemnification, but it must have been rebuilt for the original contract price, so that the trustees would not be obliged to pay any additional sum on account of the building. It appeared that there was a very serious dispute between the trustees and the contractor as to whether the trustees were not liable to pay the contractor, in consideration of his erection of the new building, a large sum of damages in addition to the original contract price, because of their failure to obtain insurance as agreed in the contract. It is true that it could not be determined in this action how that dispute would terminate; but the action to test that question between McAlpine and the trustees was pending and undecided, and it had already appeared in the former proceedings in this very action that, if the trustees were to escape liability to McAlpine for a large sum of money in addition to the original contract price, it must be bjr means of uncertain evidence of an oral waiver by McAlpine of the written condition for insurance in the building contract. All of these facts were entitled to be taken into consideration by the court in determining the question as to whether' an amendment setting up indemnification ought to be allowed at the late date when it was applied for. The court knew, in substance, what the evidence would be on the question in dispute between McAlpine and the trustees, and undoubtedly considered that the prospect of ultimate success by the trustees as against McAlpine’s claim was slight,— a view which was justified by the final outcome of that case in this court, by which it is determined that the trustees were not indemnified by McAlpine, but are subjected to a judgment for damages in his favor amounting to over $12,000. So, it now appears affirmatively that the supposed defense of indemnification clid not, as matter of fact, exist. This [468] seems to dispose of the questions raised by' the appellants conclusively. By the Court. — Judgments and orders appealed from affirmed.