115 Wis. 250 | Wis. | 1902
It was strenuously contended by the appellant’s counsel in their brief as well as in their oral arguments that many of the findings contained in the special verdict were contrary to the “great weight of the evidence,” and that this court should for that reason reverse the order of the trial court refusing to set aside such answers. The language used by counsel indicated a misapprehension of the rule which controls the action of this court under such circumstances'. When a trial court has refused to set aside a verdict or special finding of a jury, this court will not reverse such order merely because, in its opinion, the verdict is against the preponderance or “great weight” of the evidence; the deference which the court owes to the trial courts forbids such action. This court will reverse such a ruling only when there is no evidence
The questions in the case which the parties litigated sharply upon the trial were questions of fact, rather than questions of law. These questions were settled by the verdict adversely to the appellant, and it is manifest that, if they have been so settled without prejudicial error, the judgment must be af
1. The appellant claimed the right to open and close the argument to the jury under Circuit Court Bule XXIII, which provides that “the party having the affirmative shall be entitled to the opening and closing argument.” The court denied the appellant this privilege, and exception was taken to the ruling, and it is now claimed to be prejudicial error. The initial question is whether the defendants had “the affirmative” of the issue. This is a question to be determined by the pleadings. In all but two of the answers there is no question but that the material allegations of the complaint are so far admitted that the plaintiff would be entitled to judgment in the absence of proof by the defendants of their affirmative defenses. Two of the insurance companies., however, had put in answers which contained denials putting in issue the allegations of the complaint touching the adjustment of the loss. As all of the issues are tried at once, and as it is manifestly impossible to give the plaintiff the opening and close as to some of the defendants and not as to others, we think that technically, upon the pleadings, the plaintiff had the right to open and close, because as to some of the parties he had to introduce evidence in order to entitle himself to a verdict. But, in order to obviate this point, the defendants’ attorneys admitted at the opening of the trial, on behalf of the two companies named, that the adjustment had been made. They did not, however, offer at that time to amend the answers in that behalf. The court deferred the decision of the question, and, after the trial had progressed several days, and the evidence had been mostly put in, the defendants’ counsel moved to amend the answers by admitting the fact of the making of the adjustment and withdrawing the denials, and renewed their application for the right to open and close. The court held, however, that technically, under the pleadings, the plaintiff
2. The defendants proposed two separate questions, among others, for the special verdict, — one inquiring whether the plaintiff knowingly made false entries in his books as to the amount of oil on hand, and the other whether he made such entries as to the amount of flaxseed on hand. The court, however, covered the two inquiries by one question, asking the jury whether the plaintiff made such entries as to the amount of oil or flax. This is said to be error, because the question is double. We do not so consider it. If the plaintiff made a wilfully false entry as to either the oil or flax, the result was the same. It was a matter of no importance for the jury to specify which commodity was falsified. It was sufficient if it was either. The inquiry was in reality a single one, namely, whether the plaintiff made a knowingly false entry as to his .stock.
3. The court charged the jury, in reference to the defense of arson, that “fraud is never presumed, but must be clearly proved,” and this is alleged as error. It is well settled that fraud, when charged, must be proved by clear and satisfactory evidence. Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188; F. Dohmen Co. v. Niagara F. Ins. Co. 96 Wis. 38, 71 N. W. 69. No claim of error, therefore, on this branch of the instruction seems tenable. It is true that this court in one case (Wheeler
4. The jury found that there were false entries made in the plaintiff’s hooks, hut that plaintiff did not knowingly malee them: that these entries showed a greater amount of oil on hand than actually was there; that plaintiff submitted the account showing such false entries to the adjusters, hut did not know that it contained false entries, nor intend to deceive the adjusters, nor was the act calculated' to influence the adjusters to allow more than the plaintiff was entitled to recover, nor did it actually so influence the adjusters, and that the adjusters knew of the false entries, and considered their falsity in making the adjustment. If it were necessary, in order to sustain this judgment, to harmonize all of these findings, and demonstrate that they were consistent with each other and with reasonable probabilities, it might be somewhat’ difficult to do so. But it is not necessary. Just why so many inquiries were put to the jury upon the subject does not appear. The questions for the jury on this branch of the case were really hut two in number, viz.: (1) Were false entries as to the amount of the insured property made in the plaintiff’s books ■or statements submitted to the adjusters ? and, if so, (2) were •such entries made intentionally with the purpose of securing a greater amount of insurance money ? If both of these questions . are answered in .the affirmative, then the plaintiff has •committed a fraud which avoids his policy under the clause providing that the policy shall be void “in case of any fraud or false swearing by the insured touching any matter relating to this' insurance, or the subject thereof.” It was not necessary
These considerations- really dispose of all the serious questions in the case. There was ample evidence on which to base the jury’s findings that the plaintiff’s mill had not ceased to
An objection as to the form of the judgment is suggested. The defendant had issued three separate policies on different classes of property, and a separate action was brought on each policy. The actions were, however, all consolidated for trial with the actions against the other insurance companies. A' single judgment was rendered against the defendant for the aggregate amount found due upon the three policies. It is said by the appellant that a separate judgment should have been rendered for the amount of each policy. The objection is without merit. The statute provides that a “separate judgment” shall be rendered against each defendant (sec. 2609a, Stats. 1898), but it does not provide that a separate judgment shall be rendered on each insurance policy, and such a construction of the statute would be absurd. The entry of one judgment against each defendant for the aggregate sum found due under its several policies was plainly the proper course. When a plaintiff sues in one action on two causes of action, and is successful in both, 'he enters one judgment for the aggregate amount of both recoveries; and the present case is an entirely analogous one.
By the Court. — Judgment affirmed.