51 Wis. 637 | Wis. | 1881
Lead Opinion
The following opinion was filed February 8, 1881:
The stipulations in the contract of insurance to be considered on this appeal, and which are contained in the questions propounded by the insurance company in the application and the answers of the insured therein, are promissory warranties in the nature of conditions subsequent. It is the settled law in this state that any substantial breach of such stipulations in policies containing provisions like those in the policy in suit, defeats the policy. Blumer v. Ins. Co., 45 Wis., 622; Redman v. Ins. Co., 49 Wis., 431. It is freely admitted by the learned counsel for the defendant company, that, to work a forfeiture of the contract, the breach must be a substantial one. Such is doubtless the true rule of law. A trifling departure from the letter of the condition — a mere technical breach,— or probably an accidental or involuntary failure to perform the condition, not sanctioned by or known
It appears that, some time before the mill was burned, the insured received from the Backus Oil Company, of Cleveland, a consignment of oil, branded “ Fine Engine Oil,” and “ XXX Cylinder Oil,” which they used for several months before the fire to lubricate their machinery. The plaintiff offered to prove that such consignment was made pursuant to a negotiation in' the usual course of business with an agent of the oil company for the purchase of a compound of lard and sperm oils; that the agent represented that he sold such compound under the name of “ Fine Engine Oil,” for use in mills; that they purchased and received the oil under an express agreement that it was a compound of lard and sperm oils, and used it believing it to be such; and that the oil so used was equally as good and safe as pure lard and sperm oils. This testimony was rejected by the court. We think it should have been received. No analysis of the oil so used by the insured was proved, and there is no direct testimony on the part of the
There was much testimony given on behalf of the defendant tending to show the usual composition of oils of the above brands. This testimony was mostly given by experts, some of whom were evidently concealing what they regarded as secrets of the trade. The result is that the testimony is, in some respects, quite uncertain and unsatisfactory. We will assume, however, that it proved, prima facie, a breach of the condition in respect to lubricators. Against this testimony, which is by no means conclusive or indisputable, Mr. Redmon, one of the insured, testified that he had used oils a good deal for twenty years; that the oil used in the mill was lard and sperm oil; that he examined the oil in question, when it came, and that his judgment and understanding is that it was lard and sperm oil mixed. It seems to us that, in view of the doubtful and inconclusive character of the evidence of the defendant on the subject, the foregoing direct and positive testimony of Mr. Redmon fairly raised an issue of fact for the jury on thev question as to whether there had been a substantial breach of the condition under consideration. How can it be correctly said that it was conclusively proved that the oil used was not lard or sperm oil, when one of the insured, who was an expert and knew the facts, testified that it was lard and sperm? If
We greatly doubt whether the court can properly assume a fact to be proved, and take it from the jury, if the proof consists mainly of the testimony of experts, as it does in this case. It is only when the testimony leaves no reasonable doubt of the fact, that the court should exercise that power; and in the very nature of things there are usually elements of doubt, uncer* tainty and inconclusiveness in expert testimony. It is upon this principle that, in actions for infringements of patents and trade-marks (which usually depend upon expert testimony) the courts do not decide the question of infringement on demurrer to the pleadings, no matter how clearly the infringement or non-infringement may be alleged therein, but put the parties to their proofs. Leidersdorf v. Flint, 50 Wis., 401, is such a case. We do not determine the point, however, but only suggest it. As to the stipulations in regard to the force pump and hose, all that need be said is, that the evidence tends to show that there was a force pump on the premises designed expressly for putting out fires; that it was at all times in condition for use, and that it had attached to it fifty feet of hose. Whether these facts were proved, and whether there was a “ proper supply ” of hose, as required by the contract, were clearly questions for the jury.
The learned circuit judge left none of these disputed questions of fact to the jury, but directed a verdict for the defendant, on the ground (as we are informed) that the evidence conclusively proved a breach of the condition in respect to lubricators. In the view we have taken of the evidence, we think this was error.
By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
Upon a motion for a rehearing, Mr. LusJc, in behalf of the
Rehearing
The following opinion was filed April 19, 1881
In the opinion filed in this case it was said: “It is freely admitted by the learned counsel for the defendant company, that, to work a forfeiture of the contract, the breach must be a substantial one.” In his argument on a motion for a rehearing of the cause, the counsel referred to disclaims any such admission. A re-examination of his original brief shows that he is right, and that the statement was not warranted by anything he said. His language was: “We find that if there has been a breach of either of the agreements mentioned, the
On the merits of the motion, it is only necessary to say that we have carefully considered the argument of the learned counsel, but it fails to change our views of the law of the case, as expressed in the former opinion. The case was decided expressly and entirely upon its own facts; and although a general rule was suggested as probably correct, none was authoritatively laid down for the government of other cases. It was believed that this was sufficiently stated in the opinion.
By the Oourt.— Motion denied, with $25 costs.