96 Wis. 38 | Wis. | 1897
It is contended on the part of the appellant that, an order to change the place of trial having been duly made on a stipulation of the parties pursuant to sec. 2622, R. S., though defendant failed to pay the costs within twenty days after the making of such order, as required by sec. 2627, R. S., the clerk should, nevertheless, have transmitted the papers when the costs were paid, and, upon his refusal so to do, the court, bn the motion made for that purpose, should have directed such transmission, and treated such motion, if necessary, in the nature of a motion to extend the original time therefor, and granted it. We cannot sustain this contention. Sec. 2627, R. S., provides as follows: “If such' transmission be not made within twenty days from the making of the order to • change the place of trial, . . . unless such time be extended, such order shall be deemed vacated, and no change for the same cause ■ thereafter made.” Three things are essential to a change
It is further contended that the motion for a nonsuit should have been granted. Such contention is based on the theory that certain evidence, discussed in the paragraph that follows, was improperly admitted, and that without such evidence there was no competent proof of the loss sustained.
It is further contended that the judgment, should be reversed for error in allowing Fred Dohmen, Sr., and Henry Dohmen to testify from the corporation account books respecting the amount of goods on hand at the time of the fire. This is the evidence specially referred to in the preceding paragraph. Fred Dohmen, Sr., testified without objection to the amount of goods on hand as shown by the inventory of February, 1891, and also testified to the correctness of such inventory. With that as a starting point, and without verifying the correctness of the account books in any way, he was allowed, against objection, to testify to the amount of purchases from the time such inventory was made up to the time of the fire, also as to the amount of sales during/ such period, as recorded in such books: The value of the goods when the fire occurred was then determined by adding to the amount as shown by such inventory the amount of the subsequent purchases, and deducting therefrom the sales as shown by the books; then adding to the result the percentage of profit which the witness Fred Doh-men, Sr., said the plaintiff averaged to make in the business. Thus the question is clearly presented of whether the amount of stock on hand at the time of the fire, under the circumstances, could properly be established by testimony given
Just how to proceed in such a case is by no means free from difficulty. In a large business, obviously it is impossible to produce witnesses to testify of their personal knowledge respecting the amount of stock on hand, or to the purchases and sales which may have occurred during a long period of time. The bookkeeper cannot ordinarily be expected to testify to more than that the entries made by him are correct, according to the facts as reported to him in the regular course of business. Such information must necessarily come to him from a variety of sources; and to verify the same, except in the .most important transactions, in a large business, would be utterly impossible. There is a surprising dearth of authority on the question, considering the frequency with which the difficulty must be met in adjusting losses under similar circumstances. ■ The general principles of the law of evidénce applicable to the subject, properly understood, will furnish a safe guide. One of the most-fa^-miliar rules is that the best evidence the nature of the case is susceptible of must be produced. 1 G-reenl. Ev. § 82. Erom the very nature of the case, the only evidence of a definite character that could- be produced was such as could be.given by aid of the books. The stock of goods that existed, according to the inventory of February, 1891, had been added to in the regular course of business for over a year and a half, and the whole had been reduced by daily sales during that time. The multitude of transactions during such period, of goods taken in and sent out, could not be established by evidence from the mouths of witnesses. The only evidence
This is within the spirit, but perhaps goes beyond the rule, in Schettler v. Jones, 20 Wis. 412, Reed v. Jones, 15 Wis. 40, and Sexsmith v. Jones, 13 Wis. 565. In Reed v. Jones, Roberts, who was present and kept the books part of the time, testified as to the correctness of his work,, though he had no personal knowledge other than that the entries were in accordance with the facts as reported to him. Jones, who was familiar with the business, transactions in a general way¿ and had been an actor in many of - such transactions, but without any present remembrance of such transactions in detail, and without ever having had actual knowledge that such transactions were recorded in accordance with the facts, was allowed, by reference to the books, to testify to the ex-r penditure of money as there recorded in numerous items. The court, by'Mr. Justice PaiNe, in regard to such evidence, said, in effect, that ftom the necessities of the case it is the
Here there was no proper foundation laid for the use of the books. They were merely produced as the books of account kept in the business, and, without any verification whatever, the witnesses were allowed to testify respecting their contents. There is no rule with which we are familiar that warranted the admission of the evidence under the circumstances. It was prejudicial error, for which the judgment must be reversed.
Numerous errors are assigned on exceptions to the rulings ;of the trial court admitting and rejecting evidence, all of which have received consideration. No prejudicial error is perceived in respect to any of such rulings. Considerable stress is put on the refusal of the court to allow W. N. Johnson, one of the insurance adjusters who had examined plaintiff’s books four months after the fire, at the store then operated by plaintiff, and to which the goods saved from the old store had been transferred, to answer the following question : “ According to the books of the F. Dohmen Company, as examined by you, what were the total sales from the 28th day of October, 1892, to the 28th day of February, 1893, inclusive?” Several other questions of like character were ruled out. Such questions were obviously objectionable. It was not competent to prove the amount of the sales at the new stand, or the amount of the stock there, by testimony of what appeared upon plaintiff’s books. If defendant desired to use the books for that purpose,'they should have been
The court charged the jury as follows: “ So that whatever damage was done to the property of the plaintiff in this case was in consequence of the fire which occurred at that time.” One of the defenses was that plaintiff had destroyed or injured goods, or caused the same to be done, after the fire, in order to increase the loss. There was an issue in that regard for determination by the jury. There was evidence tending to support defendant’s side of that question. The language of the charge was well calculated to take such question from the jury. Probably the court did not so intend, but the language was susceptible of being so understood ; hence it was harmful.
The appellant’s counsel excepted to the following language in the judge’s charge: “You are not at liberty to reject'the testimony of an/y witness who has testified in your hecüring in, this case because his statements a/re in confiAct with the statements of another witness who has also testified in your hearing.” Respondent contends that by this the learned judge intended to convey the idea that the jury should not reject the evidence of a witness arbitrarily, without trying to reconcile it with that of others with which it was in conflict, merely because of such conflict. It is probable that such was the intention; but in testing the accuracy of an instruction it cannot be approved because, in the sense intended, it was free from error, if it was liable to be, and may probably have been, understood in a different sense, which was harmful. Instructions to juries should be clear, accurate, harmonious, and concise statements of the law applicable to the evidence and the issues to be determined; not argumentative or ambiguous. An instruction which plainly has a tendency to mislead the jury, and may probably have had that effect,
The following language in the judge’s charge was excepted to: If you come to the conclusion that any witness has Tcnow~ ingly and wilfully testified in your hearing to that which is false upon any material point, you are at liberty to reject all of the testimony of that witness, unless he is corroborated by. the statements of other credible witnesses.” Such is not the law. To avoid the liability of the entire testimony of a witness being rejected in such a case, it is not requisite that he should be corroborated by a witness, much less by witnesses. The corroboration may be by any credible evidence, or facts and circumstances that may fairly be inferred therefrom. Allen v. Murray, 87 Wis. 41; Hillman v. Schwenk, 68 Mich. 293; Bowers v. People, 74 Ill. 418; Blotcky Bros. v. Caplan, 91 Iowa, 352.
The following language in the charge was excepted to: One who alleges fraud must clearly and distinctly prove the
There was considerable evidence bearing on the question of whether the plaintiff’s officers and employees, after the fire, destroyed, or caused to be destroyed, property covered by the policy, and committed other acts, for the purpose of increasing the claim for loss over that actually sustained. Evidence was offered to sustain the defense that the plaintiff had been guilty of fraud, which, under the terms of the policy, would avoid it. On this subject the following question was submitted to the jury as a part of the special verdict: “ Did the plaintiff commit any fraud iouchmg any matter relating to the insurance, or the subject thereof, after the loss had occurred?” Touching this question, the court instructed the jury to the effect that the word “fraud,” as used in the question, means the wrongful doing of some act calculated and with intent to injure another, and which such other relies upon and acts to his injury, the circumstances being such that such other could not, by the exercise of due diligence, have discovered the truth in time to have prevented the injury. In this the learned judge intended to interpret the meaning of the word “ fraud ” as used in the policy in the following connection: “ This entire policy shall be void in case of cmy fraud or false sweating by the insured touching any matter relating to his insurance, or the subject thereof, whether before or after a loss.” He, in- effect, held that the word “fraud,” as there used, included all the essential elements of fraud in an action for deceit. Several other instruc
Commercial Bank v. Firemen's Ins. Co. 87 Wis. 297, is confidently relied upon to sustain the instructions under discussion. It is sufficient to say that the question here was not there presented, and that what was there said must be' considered with reference to the facts of that case. There, an adjustment of the loss had been made. The action to recover the amount of the loss was brought on such adjustment. The fraud claimed was that such adjustment had been procured by means of books that had been altered for the occasion. No evidence was given to show that such books, as so altered, were not according to the facts, or that the loss as adjusted was in excess of .the actual loss sustained. The trial court refused to instruct the jury that if, notwithstanding the alteration of the books, the loss was correctly adjusted, the alteration was immaterial. The court also refused to permit evidence that the alterations were not made with intent to defraud. Eor failure to give such instructions, and to permit such evidence, among other things, the judgment of the lower court was reversed; the judicial idea, we may say, being that acts not intended to defraud or necessarily calculated to háve that effect, followed by an adjustment respecting the amount of loss, correct in fact, cannot constitute fraud such as to avoid the policy. The court certainly did not intend to decide, or Mr. Justice Newma.N, who wrote the opinion, to say, that under the clause of the
The law is well settled that if the assured intentionally overvalues his loss, -or commits any other act for the purpose of obtaining a sum greater than the value of the property destroyed, and the circumstances are such that such conduct is liable to effect such result, it is fraud which avoids the policy under a clause making fraud or false swearing in respect to the loss have that effect. Park v. Phœnix Ins. Co. 19 U. C. Q. B. 110; Sibley v. St. Paul F. & M. Ins. Co. 8 Ins. Law J. 461; Shaw v. Scottish C. Ins. Co. 1 Fed. Rep. 761; 7 Am. & Eng. Ency. of Law, 1047, and cases there cited. In Maher v. Hibernia Ins., Co. 67 N. Y. 283, Folger, C. J., said, in effect, that fraud, as used here, means any trick or artifice by one to induce another to fall into error to his harm. To the same effect is Claftin v. Comm. Ins. Co. 110 U. S. 81, cited by appellant’s counsel, and many other cases that might be cited. And the same rule applies whether
The effect of the foregoing is that any trick, artifice, or deception practiced with the object of securing some advantage in the adjustment or payment of a loss under a. policy of insurance, to the prejudice of the insurer, and liable to have that effect, avoids the policy. What was said in the charge in this case, inconsistent with the law as stated, was. error. There is nothing in Wolters v. Western Ass. Co. 95 Wis. 265, inconsistent with this view.
It is further contended that, if the court gave erroneous, instructions in regard to the subject of fraud, it was immaterial, because the policy does not provide for a forfeiture of a claim for a loss on .that ground; that the provision in the policy, avoiding it for fraud or false swearing, does-not reach an existing claim for loss. A distinction is claimed between the forfeiture of the claim for loss sustained under-time policy, and forfeiture of the policy itself. Such distinction is so inconsistent with the plain intent and meaning of' the contract of insurance as not to require discussion. The-action to recover the loss is on the contract. One of its conditions is that fraud or false swearing, etc., shall avoid it.
The trial court was requested to submit to the jury a question requiring a special finding in respect to the amount of property totally destroyed. That was the principal control verted fact in the case. The defendant had an absolute right to have a special finding on each material question. Davis v. Farmington, 42 Wis. 425. True, the trial court had a large discretion in respect to the questions to be submitted (Knowlton v. Milwaukee City R. Co. 59 Wis. 278), but such' discretion did not go to the extent of warranting a refusal to submit a proper question covering a material controverted fact. Such refusal could, only be justified upon the ground that the subject was covered by other questions submitted. Such is not the case here. The refusal to submit the question requested was error.
There are several other errors assigned, but- a consideration of them does not appear to be necessary. All necessary to the decision on this appeal or for guidance on a future trial have been considered and decided.
By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.