29 Wis. 270 | Wis. | 1871
It would seem that counsel for the defendant is right in the construction put by him upon sec. 7, ch. 72, R. S., and that it was only against insurance companies incorporated by some “foreign government,” and not against those incorporated by “other states,” that the commencement of suit by petition filed with the clerk of the circuit court, was authorized; and only against such companies, also, that the twenty-five per cent, damages, in addition to the actual amount of loss and interest, for the detention thereof, with costs, were to be assessed. But whether such be the true construction or not is immaterial in'the present case, since the defendant appeared and answered the complaint, which waived all irregularities in the commencement of-the action; and since, also, the above mentioned statute, which directed the damages to be assessed, was repealed before any assessment was had in this case.
Such repeal was effected by sec. 38, ch. 56, Laws of 1870
The instruction which was asked by the defendant, and. refused by the court, was, we think, .properly refused, .because there was no evidence in the case to which it was .applicable. The evidence was clear and uncontradicted that the alleged verbal contract to sell, referred to in the instruction, .was abandoned before Lombard entered into possession. Lombard, whose testimony alone was relied upon to show the verbal contract, himself distinctly so testified, and that “there was an understanding that I was to pay no rent for the place until the
Exception was taken to that part of the charge in which the court said: “ But the defendant claims that there are suspicious circumstances attending upon the burning. What these circumstances are, you will remember. I do not think there is much proof in that direction. The last sentence was regarded as particularly exceptionable; but, concurring, as we do, in the entire correctness of the remark, we cannot think of criticising the court below for having made it
And for the same reason, namely, because there was no evidence upon which a jury could have found that the plaintiff set fire to the building herself, or caused or procured it to be set on fire and destroyed, we are of opinion that it is immaterial whether the court was right or wrong in giving the instruction asked by the plaintiff in relation to the degree or quantum of proof required to establish such fact. That instruction was as follows: “ The defendant, in making the defense that the property was destroyed by the act of the plaintiff, is bound to establish the fact that she set the fire by evidence which is equal in strength to the testimony of one credible witness swearing to the fact.” No less testimony should be taken by you as establishing the fact. This instruction may perhaps be considered as in conflict with the decision of this court in Washington Union Ins. Co. v. Wilsons, 7 Wis., 169, where it was held, upon such defense, that the rule of evidence was not, as on an indictment for arson that the jury must be satisfied of the guilt of the party beyond a reasonable doubt.
Other courts have held differently, and that the same degree of proof is required to sustain the defense as would be required to procure a conviction under an indictment for the same offense. McConnell v. The Delaware M. S. Ins. Co.; 18 Ill., 228 ; Butman v. Hobbs, 35 Maine, 227; Thayer v. Boyle, 30 Maine, 745; Thar
But, whatever the true rule of evidence may be, it is manifest, for the reason above stated, that the defendant could not have been prejudiced by the instruction here given, and that, although the same may have been erroneous.
It follows from these views that there was no error in the proceedings and judgment in the court below, except that part
By the Court — It is so ordered.