163 Wis. 329 | Wis. | 1916
No time need be spent on whether any of the findings of fact are contrary to the evidence. We are relieved therefrom because, as indicated in the statement, there was a conflict of evidence on all material issues, requiring them to be submitted to the jury, and because counsel for appellant concede in their brief, as they did on the oral argument, that such is the case. The most claimed is that there are findings, vital to the judgment, which are against the great preponderance of the evidence. If that were so, it
No rule is more firmly established than that findings by a jury, approved by the trial court, are proof against attack here, if supported by any believable evidence, in any reasonable view of it. An appearance, by the history of the trial, that such findings are against the preponderance, or the great preponderance of the evidence, is unimportant, unless such preponderance so conclusively proves the contrary of such findings as to leave no jury question in respect to the matter.
In view of the foregoing, it must be held that the findings here are to be regarded as verities. On the question of whether there is any believable evidence to sustain a verdict, this court has said there is not when it is contrary to all reasonable probabilities, Meyer v. Home Ins. Co. 127 Wis. 293, 106 N. W. 1087; but so long as there is a state of evidence requiring conflicting probabilities to be considered, a jury determination either way cannot be said to be against all reasonable probabilities, even though the evidence of one witness,- — • unimpeached by matters of common knowledge, or conceded facts, or established physical situations, — stands opposed by the evidence of several witnesses. That is the effect of Badger v. Janesville C. Mills, 95 Wis. 599, 70 N. W. 681; Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615, 71 N. W. 1034; Flaherty v. Harrison, 98 Wis. 559, 14 N. W. 360; Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 80 N. W. 467; Samulski v. Menasha P. Co. 147 Wis. 285, 133 N. W. 142.
In the last case cited, the rule that evidence on one side of a controversy will warrant setting aside, on appeal, of a jury finding in favor of the other, was confined to instances where the finding is contrary to unquestionable physical situations or common knowledge, or conceded facts. Mere weight of probabilities or inferences against the findings is not sufficient. It is needless to add that the situation here does not satisfy that test, and that the judgment must be regarded as
Mr. Bein, who testified to having discovered the place of origin of the second fire and put it out, said that'when he reached such place,. Alfred Campbell was near by and he had a conversation with him. Evidence had already been introduced respecting some suspicious circumstances indicating that the fire was of incendiary origin and that Campbell and his wife might be the guilty parties. In that situation, Bein was twice asked, “Did you have a conversation with him at that time ?” and the witness answered in the affirmative. He was then asked, “What was that conversation?” The court finally sustained an objection to the question for want of sufficient foundation therefor, indicating that the evidence might be admissible further on by saying, “You may, however, reserve the right to recall the witness later.” That right was not exercised. It is contended that prejudicial error was committed at this point.
The inquiry and objection mentioned presented a question of competency. The court did not exclude the proffered evidence, except temporarily. As counsel did not return to the subject, though the basis therefor was much strengthened and the door was carefully left open therefor, it must be held that the matter was waived. Moreover, the nature of the question was such that, in the most favorable light for appellant, prejudicial error does not affirmatively appear. The question did not necessarily suggest that the conversation was in respect to any circumstance of a criminating nature. There was no suggestion in it, or aside, to indicate the materiality of the conversation. This court will not reverse a judgment because of the rejection of evidence, unless its materiality clearly appears and it likewise appears that the exclusion might have affected the result unfavorably to the party complaining. ■
It is further contended that error was committed because
Several instructions requested which the court refused to give, were worded appropriately for submission of the case for a general verdict. They were in form that, if the jury believed from the evidence specified things “the plaintiff is-not entitled to recover in this action,” or “your verdict should be for the defendant.” The form of the requests warranted, their rejection. Johnson v. St. Paul & W. C. Co. 126 Wis. 492, 105 N. W. 1048; Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48; Odegard v. North Wis. L. Co. 130 Wis. 659, 110 N. W. 809. The trial court gave instructions applicable to each of the special questions and no additional instructions of that character were requested which were not sufficiently covered by those which were given.
Complaint is made because the court, in instructing the jury on the question relating to the amount of loss, said: “You will recall the evidence that a great many articles of personal property were totally destroyed and that some articles were not destroyed but were damaged.” It is said that such language involved the suggestion that none of the articles of personalty were saved. It does not seem so. The instruction was in exact accord with the evidence. If counsel for appellant supposed that any explanatory instruction was
The jury were instructed that the alleged admissions of Campbell were not entitled to weight unless the jury were satisfied that such admissions were freely made and not under such compulsion, threats, intimidation, promises of immunity, or persuasion, as to prevent him from being a free agent in the matter. Complaint ’ is made of that, solely, upon the ground that there was no evidence warranting it. The admissions claimed, as indicated in the statement, amounted to a confession by Campbell to a public official that he and his wife were guilty of the crime of arson in respect to the de-i struction of the property. ■ The instructions, in the abstract, were correct. Keenan v. State, 8 Wis. 132; Connors v. State, 95 Wis. 77, 69 N. W. 981; Hintz v. State, 125 Wis. 405, 104 N. W. 110. The circumstances under which the alleged confession was made furnished some basis for the cautionary instructions. Probably the character of Campbell had something to do with the matter. He was called from his working place in the woods by a state official and his attorney, and, in a room away from his wife, who was likewise called, and apart from any one else, he was subjected to a long investigation. The nature of the alleged confession probably aroused suspicion as to its having been given freely and intelligently. According to the witness who testified on the subject, Campbell rather volunteered to accuse himself and his wife, with whom he was living agreeably, of having committed a most serious crime. Notwithstanding the witness testified that the confession was freely made, the circumstances were consistent with a contrary view. Mrs. Campbell, who was examined by the investigator about the same time, testified that an effort was made to intimidate her and to entrap her into signing a statement they had prepared, without her knowing its contents. Under all the cireum-
The jury were instructed that if a conspiracy was formed to burn the property and collect the insurance, as defendant claimed, but it had been abandoned by Campbell before the alleged confession was made, no weight should be given to the evidence of such confession. As matter of abstract law, that is correct. Miller v. State, 139 Wis. 51, 89, 119 N. W. 850. “When the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own, to affect the others.” Wharton, Grim. Ev. (9th ed.) sec. 699. True, in case of such a conspiracy as is claimed to have existed here, the common design cannot be said to have been accomplished until the insurance shall have been obtained. If counsel for appellant had desired the instruction given to be accompanied by an explanatory feature, they should have requested it. There was certainly evidence of an abandonment by Campbell of the fraudulent design, if one had been formed, as claimed. If he confessed to having, in concert with his wife, set the fires, he must have -known that if such wore established to be the fact, it would be fatal to the full accomplishment of such design. Doubtless it was upon the theory that such a confession would evidence an abandonment of the conspiracy that the instruction was given. So looking at the matter, which we think is a reasonable view to take, there was a sufficient basis for the instruction to preclude condemning the giving of it as fatal error.
No question is raised but what all the property destroyed was covered by the policy of insurance. It was conceded on the argument that such was the case, but whether such property as was removed from the house and stored in the barn on
The foregoing covers all suggestions of counsel which seem to merit special mention. We find no clearly harmful error, if error at all, in the record.
By the Court. — The judgment is affirmed.