Knopke v. Germantown Farmers' Mutual Insurance

99 Wis. 289 | Wis. | 1898

Winslow, J.

1. The first error alleged is with regard to certain remarks made by the defendant’s attorney upon the cross-examination of the plaintiff. The plaintiff had testified to the circumstances of the fire and the value of the items of property destroyed, and upon his cross-examination the following colloquy took place: Question. “ What were those two men doing while that fire was burning?” [Referring to two men who helped carry out the housekeeper’s quilts and blankets.] Answer. “They helped carry out the housekeeper’s beds, and two boxes, one quilt, two blankets,— and that’s all; and then nobody could get in. It didn’t take two minutes after we woke up that the kitchen — if I had time enough I save — ” By Mr. Bouck: “Answer the question. You are not the innocent Abigail you pretend to be. I can tell about the old 'man for a good many years.” By Mr. Hume: “I object to that statement before this jury.” By Mr. Bouck: “Now I insist. I said that that party is not an innocent party in court, and I insist he answer the question.” To these remarks, counsel for plaintiff then and there duly excepted. By the court: “Just answer the questions, and stop.” To which remarks of the court, plaintiff then and there duly excepted. We shall not attempt to justify the remarks made. They were clearly out of order, and cannot be defended. Some allowance, however, must be made for the natural vehemence of counsel in an action which is hotly contested.' The witness was plainly proceeding to make statements not called for by any question, and the very natural impulse of counsel was to stop him and call him to order. While we cannot approve the language used, still, considering the occasion and the evident attempt of the witness to inject into the answer matters not asked about, we are not able to say that it should be regarded as reversible error. It is entirely different from the language used in Sutton v. C., St. P., M. & O. R. Co. 98 Wis. 151. We cannot reverse a judgment for every improper chance remark made by counsel in tjie course of a heated trial,— especially when made under the provocation offered by a too willing witness.

2. Upon rebuttal the plaintiff was recalled by his own counsel, and asked if he lost any money which was in the house at the time of the fire; and it was explained by counsel that the testimony was offered simply to show want of motive in the plaintiff for .setting the fire. This evidence was ruled out, upon objection by the defendant, and this ruling is alleged as error. There was no offer to show that the sum alleged to have been lost was any considerable sum. It may not have been more than $1. Certainly the loss of such a sum could cast no light upon the question of motive, when the insurance sought to be recovered was $1,000. If such evidence were admissible at all on the subject of motive,— Avhich is not decided,— the court should be advised that the sum alleged to have been lost was large enough to afford reasonable ground for an argument that the plaintiff would not willingly lose it for the sake of recovering the insurance. Such seems to have been the case in Farmers' Mut. F. Ins. Co. v. Crampton, 43 Mich. 421, which is relied upon by the appellant.

3. Error is claimed because the court allowed the defendant to prove that a former house standing on the same site burned down several years before the fire in question, and while the plaintiff was occupying it. Examination of the record shows that this evidence was volunteered by the plaintiff. It appeared upon his cross-examination that there bad been another house on the same site as the one destroyed, and the plaintiff was then asked how long it remained there, to which he replied, “Well, that burned down the second year I was there.” The statement, having been brought into the case by the plaintiff voluntarily, is not a ground of error.

4. Errors are. alleged in the charge, and in the refusal to give certain instructions in full as requested. The plaintiff requested a charge to the effect that the presumption of law is that all persons are innocent of crime until their guilt is established by competent proof, and that the burden of bringing this proof is on the defendant; that you must be satisfied by a preponderance of the evidence that the plaintiff did intentionally set the fire; and that there is no preponderance unless the testimony adduced is sufficient to overcome the presumption of innocence. The trial judge gave this instruction as requested; leaving out, however, the last clause. W.e do not see that the last clause added anything of moment to the general effect of the instruction. When the jury were told that the presumption of innocence existed until they were satisfied by the preponderance of the evidence of the plaintiff’s guilt, the whole question was covered.

But it is said that there was affirmative error in the charge upon the subject of the preponderance of the evidence. The court told the jury in his original charge, as well as in the supplemental instructions, that the case was to be decided upon the preponderance of the evidence, and that “preponderance of evidence” meant putting all the plaintiff’s testimony on one side, and all the defendant’s testimony on the other side, of the scale, and the side of the scale which mates down weight has the preponderance. In •immediate connection with this instruction, however, the court told the jury twice in the original charge, and twice at least in the supplemental instructions, that they must be satisfied by the preponderance of the evidence that the plaintiff set fire to the house. The general effect of the charge on this subject is very much the same as that given in Curran v. A. H. Stange Co. 98 Wis. 599, and what is there said is applicable here. If the court had simply charged that they were to find a verdict on the preponderance of the evidence, it would have been misleading, under the cases cited in the CxirraM Case; but when he added to his definition of “ preponderance ” the definite statement, several times repeated, that they must be satisfied from the preponderance of the evidence before they could find the plaintiff guilty of arson, the charge was not erroneous. This is not a case where an erroneous proposition is laid down in one part of the charge, and a correct contradictory proposition in another. It has often been held in such cases that the latter will not correct the former. The charge here, to the effect that “preponderance of evidence”means that evidence which weighs the most, is correct, as far as it goes. It would be misleading if it stopped there. But when, in addition, it is stated that it must be such a preponderance as satisfies the jury, no reasonable objection can be made to it.

Other criticisms are made of the charge, but it is not; deemed necessary to state them particularly. While the charge is not exactly a model in all respects, we discover no reversible error in it.

5. The alleged newly-discovered evidence was either cumulative or impeaching. A new trial will not be granted upon such evidence.

By the Court.— Judgment affirmed.