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the action, but that from the time of such trial "until the eighth day of August, 1894, they, and especially the said Lusk (who had special charge of the case), entirely forgot all about said action, or their duty to take the necessary steps to take an appeal to said circuit court, and they were not reminded of said action until the eighth day of August, 1894,” at which time, through meeting an officer having an execution on the judgment in his hands, "the whole matter flashed into Lusk's mind, and he became conscious for the first time since the 16th of July, that any such action was pending, and that he had entirely forgotten the whole matter.” By this time the period allowed for taking an appeal had already expired. The plaintiffs in the present suit showed, as a ground for relief and as excusing their forgetfulness, that during the time hereinbefore stated there were extensive and dangerous forest fires raging in the vicinity in which the plaintiffs had their mills and lumber yards, causing great loss of life and property, and that they were engaged during most of the months of July and August, in fighting the fire and protecting the property, and at times worked not only during the day, but until long into the night, and that the partner, Lusk, from his being so constantly engaged in the effort to protect the property from fire, had his mind so occupied as to make him forget nearly all the general business of the firm, and particularly the business involved in this suit. A demurrer to the complaint was sustained, and the plaintiffs appealed.
O'Neill & Marsh, for the appellants.
43 PINNEY, J. 1. It is well settled that, in order to maintain an action to enjoin or set aside a judgment rendered in an action in which there was a good defense at law, known to the defendant at the time it was rendered, it must satisfactorily appear that the defendant was prevented from making his defense by fraud, mistake, accident, or surprise, unmixed with laches or negligence on his part. If he could have defended himself at law, but allowed judgment to go against him by his own neglect, he cannot have relief for a matter of which he might have availed himself at law: Wright v. Eaton, Y Wis. 595; Stowell v. Eldred, 26 Wis. 504; Barber v. Rukeyser, 39 Wis. 590; Duncan v. Lyon, 3 Johns. Ch. 356; 8 Am. Dec. 513; Floyd v. Jayne, 6 Johns. Ch. 479; Kibbe v. Benson, 17 Wall. 625. As was said by Bronson, J., in Norton v. Woods, 22 Wend. 525: "Independent of all authority, it will never do to permit a party to appeal to chancery for a new trial 44 when he has neglected the proper
AX. ST. REP., VOL. LIII.
opportunity and the appropriate means to make his defense at law.”
It may be conceded that the allegations of the complaint show that the judgment of the justice's court was inequitable, and that the plaintiff had no cause of action against the plaintiffs in the present case; but it is impossible, and inconsistent with well-established principles, to say that the case made by the complaint affords any ground for relief. It is not sufficient to show that injustice has been done, but it must appear that it has been done under circumstances which authorize a court of equity to interfere, for “the inattention of parties in a court of law can scarcely be made a subject of interference of a court of equity": 2 Story's Equity Jurisprudence, sec. 896. Equity will never interfere where a party under no disability neglects to make his defense at law: Miller v. Morse, 23 Mich. 368. The plaintiffs were not prevented by fraud, accident, surprise, or mistake from availing themselves of their defense to the action, unless sheer forgetfulness can be called such, within the sense of the rule-a proposition which we think cannot be maintained. We have not been referred to any authority holding that relief can be had in equity against a judgment at law on the ground that the party against whom it was rendered simply forgot to appear and make his defense at the time appointed for trial, or because he forgot to appeal from the judgment within the time prescribed by law.
The plaintiffs' contention is, that one of them (Lusk) had entire charge of their litigation, and that his forgetfulness was excused by the particular circumstances of the case, and that a prudent and careful man might make the same mistake that was made in this case. It does not appear that there was any erroneous mental conception on the part of Lusk, or either of the plaintiffs, influencing them to act or to omit to act. There was no error in action, opinion, or judgment; no misconception, misappréhension, or misunderstanding. 45 Mistake differs, in a legal sense, from accident, in that it presupposes the action of the will, while in the latter case no such action is implied; but in either case, in the legal sense, it is essential to relief that the event or occurrence was not the result of personal negligence or misconduct. It is not claimed that the circumstances were such as to deprive of memory, or mentally disable or unfit either of the plaintiffs to transact their ordinary business during the twenty days allowed for appeal. So far as it appears, they were capable of appropriating and bestowing their time as they chose. Failure to remember, entire forgetfulness to act as duty or interest requires, is so closely allied to laches or negligence that it is dif.
ficult, if not impossible, in a case like the present, to distinguish between them. Indeed, "forgetfulness” is defined as negligence -careless omission: Century Dictionary. The case of Hurd V. Hall, 12 Wis. 126, and similar cases, go upon the ground of mistake of fact. The plaintiff Lusk failed to get to the station in time to take the train for the place of trial, to defend the action; and that fact, of itself, was calculated to admonish the plaintiffs of the necessity of being prompt and diligent in perfecting an appeal from the judgment which they had every reason to believe had been rendered against them that day. They suffered the necessity of appealing to pass wholly from their minds, and “utterly forgot all about said action, or their duty to take the necessary steps to take an appeal,” until the 8th of August, 1894, when it was too late. From the time the plaintiff Lusk missed the train until the sheriff made the levy, they had not made any inquiry, or indulged in a thought—as the allegations of the complaint, in substance, show-as to what had been done in the action, or whether judgment had been given against then or not. The fact that they forgot, even under the circumstances stated, to appeal from the judgment, must be regarded as their misfortune, and not as affording any foundation for equitable relief against the judgment.
46 2. It was contended that there was fraud in the recovery of the judgment, because the plaintiff, as a witness in his own behalf, in testifying to the facts constituting his alleged cause of action, made no mention of the chattel mortgage and seizure of the property in question under it for nonpayment of the debt secured by it. It cannot be said that he testified falsely or did anything to impose upon or mislead the court. These facts were no part of his case, and he was under no obligation to bring forward the alleged justification of the taking and conversion of the property. If he had been interrogated on the subject, and had testified falsely, the case would have been within Stowell v. Eldred, 26 Wis. 507, relied on by the plaintiffs. The plaintiffs knew the facts, and it was solely their fault that they were not brought forward. The case of Tucker v. Whittlesey, 74 Wis. 80, is therefore not in point, and for these reasons this contention fails.
The demurrer was rightly sustained.
JUDGMENTS-RELIEF IN EQUITY FROM.-When a party to an action at law neglects to make a defense known to him, or which might have been known by the exercise of proper diligence, the judgment rendered therein will not be enjoined, nor the party relieved in equity from the result of his own want of proper care and dillgence, unless he was prevented from discovering and availing himself of such defense by the fraud of the opposite party or by other cause beyond his control: Harding v. Hawkins, 141 Ill. 572; 33 Am. St. Rep. 347, and note. This subject is fully discussed in the ex. tended note to Morrill v. Morrill, 23 Am. St. Rep. 117, 188, and the notes to Fealey v. Fealey, 43 Am. St. Rep. 117; Hamblin v. Knight, 26 Am. St. Rep. 820, and Heim v. Butin, 50 Am. St. Rep. 56.
JUDGMENTS-RELIEF FROM-NEGLIGENCE.-Relief will not be granted from a judgment brought about by the carelessness of the injured party: Champion v. Woods, 79 Cal. 17; 12 Am. St. Rep. 126; A party can come into a court of equity for relief after judgment at law only when he has been deprived of a legal right by fraud, accident, or mistake, unmixed with negligence or fault on his part: Bren. ner v. Alexander, 16 Or, 349; 8 Am. St. Rep. 301, and note. Negligence as a bar to relief in equity against judgments is the subject of the monographic note to Payton v. McQuown, ante, p. 444.
BUTTON V. AMERICAN MUTUAL ACCIDENT ASSOCIATION.
(92 WISCONSIN, 83.) INSURANCE-ACCIDENT.-AN INJURY INTENTIONALLY INFLICTED on an assured by another person is an accidental injury within the meaning of a policy of insurance against injuries from external, violent and accidental means, though the policy provides that the insured shall not be liable for intentional injuries. The word "intentional,” as here used, refers to the acts of the insured alone.
Phillips & Hicks, for the appellant.
84 WINSLOW, J. This is an action upon a policy of accident insurance. During the life of the policy the plaintiff was injured by the intentional discharge of a firearm at him by an unknown person. The policy insured the plaintiff against death or injuries through "external, violent, and accidental means," but contained a clause providing that it did not insure against death or injury resulting, wholly or in part, directly or indirectly, from any of the following causes, viz: Suicide or self-inflicted injuries, felonious or otherwise, sane 85 or insane; war or riot; wrestling; fighting; lifting (foreign to the pursuit or occupation); racing; gymnastics; exposure to unnecessary dangers; intentional injuries; taking poison; contact with poisonous substances; inhaling gas, chloroform, or any anaesthetic; medical or surgical treatment; sunstroke or freezing; hernia; fits; vertigo; and sleepwalking. The only question raised is, whether this policy covers injuries intentionally inflicted by another person.
It seems quite well setted that an injury intentionally inflict. ed on the insured person by another is an "accidental injury," when such injury is unintentional on the part of the insured: Cooke on Life Insurance, sec. 50. Unless, therefore, there is some provision of the policy which excludes liability for such injuries here, the plaintiff must recover. It is claimed that the clause providing that the policy shall not cover "intentional injuries,” excludes liability for such injuries. In support of this contention a number of authorities are cited, holding that where the policy excludes liability for "intentional injuries inflicted by the insured or by any other person," the insured cannot recover, even though the insured did not participate in the intention: Travellers’ Ins. Co. v. McConkey, 127 U. S. 661. Such a holding seems reasonable, in view of the words used. But here the words are simply "intentional injuries," and the question is, Whose intention is referred to? We think it must be held that the word "intentional,” as here used, refers to the insured alone. The words, "intentional injuries,” are in close connection with a long list of injuries, all of which import more or less of intent, consent, or participation by the insured, and are evidently excluded because of such intent, consent, or participation; the idea evidently being that the risk should be one which the insured cannot, by intent or consent, or by his own act, produce or hasten. Had it been the intention to exclude another class of injuries, namely, those inflicted intentionally by a third person only, it would have been 86 easy to do so by a very few plain words. In the absence of such words, we construe the words under the familiar rule of "noscitur a sociis." The plaintiff was entitled to the judgment which he recovered.
By the Court. Judgment affirmed.
INSURANCE-ACCIDENT-INTENTIONAL INJURY INFLICTED BY ANOTHER.-Death from the direct violence of a third party may be an accident within the meaning of a policy insuring the life of the deceased: Lovelace v. Travelers' Protective Assn., 126 Mo. 104; 47 Am. St. Rep. 638, and note. See, also, the extended note to Paul v. Travelers' Ins. Co., 8 Am. St. Rep. 766.