Clark v. Franklin Farmers' Mutual Fire Insurance, 111 Wis. 65

Clark v. Franklin Farmers' Mutual Fire Insurance

111 Wis. 65 | Wis. | 1901

MARSHALL, J.

The burden of proof was on respondent to establish by a preponderance of the evidence, to a reasonable certainty, that the destruction of the buildings was caused by lightning. To merely prove that they might have been so destroyed and that they .might just as likely have been destroyed by water, or to prove the existence of circumstances which were merely sufficient to constitute a foundation for speculation and conjecture, was not sufficient to warrant a recovery by plaintiff. Hyer v. Janesville, 101 Wis. 371. ‘Judicial determinations must rest upon facts, and legal liability must be determined by the law in application to facts. That does not exclude circumstantial evidence, for such evidence is often the strongest, but it must establish facts.’ Sorenson v. Menasha P. & P. Co. 56 Wis. 338. In this case the situation on the morning after the loss, irrespective of the fact that a small portion of the roof of one of the bnüdings and a few shingles were beyond where water had reached and the fact that some of the material of the buildings was so badly broken and splintered as to indicate application directly thereto of great force, was such as to furnish a perfect explanation of the cause .thereof. As indicated in the statement, the foundation of those parts of the buildings which disappeared and those parts that remained partially in place, had been so disturbed as to render what had occurred to such buildings not only a perfectly natural and probable but a necessary result thereof. If a portion of a roof and a few shingles were deposited on the bank of the stream a little way from the site of the mill, as testified to by the plaintiff, it is much more *69probable that tbe cause thereof was wind than that it was lightning. The circumstance that a board that was standing in the mill against the side thereof was broken, is too trifling "to be considered. The splintered condition of some of the timbers, testified to, and that of the material of which the buildings were composed, as such material was found after the loss occurred, is much more reasonably accounted for by the fall of the structures from their supports, the tearing away thereof from the structures that remained, and the collision of the floating wreck with the rocks on the westerly side of the stream, than by lightning. The natural course of the water, as it passed from the new channel into the natural bed of the stream, was southward against the rocky bank before described. The wrecked portions of the buildings must have been carried by the water with great force against such rocks and been pressed and ground against them while passing rapidly southeasterly around the bend- in the stream for a distance of twenty rods or more to where the same finally lodged. There were no marks of fire any where, such as are customarily found where lightning has come in contact with dry wood. On the whole, we are unable to see any justification in the evidence for the finding that the buildings were destroyed by the latter cause. The evidence is strongly the other way. It establishes so clearly that the undermining of the buildings by water caused the loss complained of, that the circumstances relied on to show that lightning was the. cause at best furnish only a slight basis for speculation and conjecture. The judgment must be reversed for that reason.

Courts and jurors are expected to view evidence in the light of reason and common sense, and not say officially that a fact may or does exist which they would otherwise say does not. The mere fact that a claim is made and evidence is produced in an attempt to sustain it, does not warrant the submission of an issue in regard thereto to a jury *70for determination. In this case a verdict should have been directed in favor of the defendant without hesitation.

It is considered that the instruction to the jury that it was proper for the directors of the appellant to submit'the controversy to a jury for determination since they, the directors, were uncertain as to the cause of the loss, was wholly unwarranted. There was nothing in the evidence or the conduct of appellant or its counsel upon the trial to indicate that there was any such uncertainty on their part. On the contrary it clearly appeared that they attributed such loss to the action of the water from first to last, and that, at every stage of the trial where it was proper to do so, it was insisted that there was no evidence to establish the claim of plaintiff that the loss was caused by lightning. The suggestion of the court that appellant’s directors were uncertain as to whether lightning caused the loss or not, under the circumstances, quite likely was prejudicial to appellant.

By the Court.— Tho judgment of the circuit court is reversed, and the cause remanded for a new trial.