74 Wis. 470 | Wis. | 1889
The mere fact that the plaintiff was allowed to testify to the value of the building was not such an error as should work a reversal. True, it was immaterial upon any of the issues submitted, but it affected no substantial right of the defendant, and hence is not ground for reversal. Sec. 2829, R. S. The same is true respecting the answer of the witness Dick as to his seeing Noah Welch and others outside of the house on Friday before the fire, with hatchets and axes, and saying that they were going
The question whether such use of the second story of the building materially increased the hazard and risk was one of fact for the jury. It was fairly submitted to them. There appears to be evidence sufficient to sustain their findings. We are unwilling to hold that the jury were concluded upon that point by the testimony of “ men skilled in the business of insurance.” In fact the question presented involved no such special skill or knowledge as to render the “ opinion ” of such alleged experts admissible. Veerhusen v. C. & N. W. R. Co. 53 Wis. 689; Joyce v. Maine Ins. Co. 45 Me. 168, 71 Am. Dec. 536; Lawson, Exp. Ev. 203.
There was no error in allowing counsel to comment upon the fact that two persons who, according to one of the defendant’s witnesses, went into the room with him where the hoop-poles were being shaved, had not been called as witnesses. Baker v. State, 69 Wis. 41.
The only question presented by the record requiring serious consideration is whether the use of the second story of the building in shaving hoops by the plaintiff’s tenants, as found by the jury, was such as to work a forfeiture of the policy. Such use continued for one week, and terminated three days before the fire. Such use did not materially increase the hazard and risk, and in no way contributed to the injury. In the portion of the policy quoted in the statement of facts it was, in effect, agreed that if the premises should at any time be occupied or used, in whole or in part, for any purpose, whether manufacturing or otherwise, different from that set forth in the application or written in the policy, without the consent of the company indorsed thereon, the same should wholly avoid the policy. In the contract of insurance, the building is, in effect, described
The question recurs whether the misuse here complained of constituted such substantial breach. It will be observed that the building at no time ceased to be occupied by the three tenants named, nor at any time ceased to be used by
We find no material error in the record.
By the Court.— The judgment of the circuit Court is affirmed.