95 Wis. 542 | Wis. | 1897
The following opinion was filed February 2, 1897:
The first error alleged is the denial of the-defendants’ first motion for a nonsuit, and compelling a joint.
. The second error alleged is the denial of the defendants’ .motion for a nonsuit at the close of the plaintiff’s testimony. This is upon the ground that the plaintiff had not proved that the premiums had been paid. Eeceipt of the premiums was acknowledged in the policies themselves. The defendants had set up as a specific defense the failure to pay the premiums. No' doubt, the recital of the payment of the premiums, in the policies, was prima facie evidence that they had been paid. Whiting v. Miss. V. M. M. Ins. Co. 76 Wis. 592. The answers admit the execution and delivery of the policies, and seek to avoid them by the affirmative defense of a want of consideration. No doubt, the burden of
As stated, the principal contention in the trial court, as here, was over the question whether Winchester had power, by reason of his employment, to bind the plaintiff by his acceptance of notice of the cancellation of the policies, or by his surrender of them for cancellation, under the circumstances shown by the testimony. The extent and scope of his au
The defendants claim that the issues of fact were not submitted to the jury fairly. This is on the ground, mainly, that certain questions which the defendants asked to have submitted to the jury were not submitted in the form requested. No doubt, the defendants were entitled to have this issue submitted to the jury, in substance, as they requested. The form in which it shall be submitted is very much in the discretion of the trial court. On this main issue the questions proposed by the defendants and those submitted by the court differ so little in substance that it is a matter of considerable nicety to discriminate between them. The questions áibmitted seem to have all the substance of the questions proposed, and to differ from them very little except in mere form. A more specific objection is that the court submitted questions of law to the jury. And it is true that the questions submitted involved matters of mixed law and fact. It is not always possible to state questions of fact so cleanly as that they shall involve no implication of law, Indeed, the questions proposed by the defendants have the same infirmity, to an equal, perhaps greater, degree. One of them is this: “Did the business arrangement between the plaintiff and Winchester authorize Winchester
The defendants complain that their special instructions were not given. A careful perusal of the charge shows that, so far as they were applicable, the substance of all these requests to charge were given in the general charge, fully and clearly, upon all points bearing on this contention, leaving little, if anything, to be desired.
By the Court.— The judgment of the circuit court is affirmed on both appeals.
A motion for a rehearing was denied April 7, 1897.