53 Wis. 238 | Wis. | 1881
1. The question litigated on the trial was, whether the policy was renewed the second time in May, 1877; and the principal question argued on this appeal is, whether there was sufficient evidence of such renewal to authorize the court to submit that question to the jury.
The plaintiff testified in his own behalf that in May, 1877, one Edwards, who was the agent of the defendant company at Winneconne, and who, as such, countersigned the orginal policy, came into his store and told the plaintiff that he had renewed him in the Rome, and thereupon the plaintiff paid Edwards $30, which was the annual premium stipulated in the policy and the premium paid for the renewal of 1876; and
2. There is no testimony showing that in any interview between the plaintiff and Edwards anything was said as to the time the renewed policy was to run. It is argued by the learned counsel for the defendant, that this omission brings the case within the rule of Strohn v. Hartford Fire Ins. Co 37 Wis., 625, and renders the alleged renewal invalid. We cannot agree with counsel. The transaction was a renewal of the old policy with all of its terms and stipulations, one of which was that the risk should be for one year. It amounted to a change of the date of the policy, by mutual consent, from
3. Two witnesses were permitted to testify for the plaintiff, against objections on behalf of the defendant, to conversations in July and September, 1877, to the effect that plaintiff, on those occasions, asked Edwards for the certificate of renewal of his policy in the defendant company, and that Edwards insisted that he had previously delivered such certificate to the plaintiff. Was it error to admit this testimony? It was said in Hazleton v. Union Bank, 32 Wis., 34, that “the admissions or representations of an agent, while engaged in any particular transaction for his principal, made in regard to such transaction, may be received as evidence against the principal in a controversy concerning such transaction. But to be received they must constitute .a part of the res gestee in the course of the agent’s employment about the matter in question. They must accompany the transaction or the doing of the business, and must be within the scope of the delegated authority.” Page 48. Although the delivery of the renewal certificate was not essential to complete the contract and bind the company to pay the loss, yet, by the usual course of business, it was the duty of the agent, Edwards, to deliver, and the right of the plaintiff to have, such certificate as evidence of the renewal of the policy. The “ transaction ” of renewal, therefore, includes the delivery of the certificate, as well as the
4. Edwards, defendant’s agent, testified, in substance, that he did not renew the policy in question in 1877; that he did not receive the premium for such renewal, and did not enter such renewal in his policy register, nor report the same to the defendant, as the rules of the company and the course of the business required him to do had the policy been renewed; and he produced his policy register in court, which contained no such entry. He was then asked by defendant’s counsel, on his direct examination, whether he ever paid the defendant company the premium on any such renewal. The court sustained the plaintiff’s objection to the question. It is claimed that this ruling was erroneous. There was no claim made on the trial that the defendant ever received the renewal premium, and from all the evidence it is almost a verity in the case that it did not. But, however this maybe, we think the testimony sought to be elicited by the question propounded to the witness was incompetent. If the plaintiff paid the renewal pre
5. In the charge of the learned circuit judge to the jury, he instructed them that, in determining the existence or non* existence of alleged facts in relation to which there was a con* flict of testimony, they should consider the surrounding circumstances and the reasonable probabilities of the case. It is argued that this is too general, and that the jury may have understood that they were at liberty to consider circumstances of which no proof had been given. Considering the charge as a whole, it seems to us that no person of ordinary intelligence could have so understood it. The judge plainly meant the circumstances which the evidence had disclosed to the jury, and the reasonable probabilities deducible therefrom; and so we think the jury must have understood him.
The foregoing observations dispose of all the alleged errors assigned which it is deemed necessary to discuss. Finding no error in the rulings of the circuit court, we must affirm the judgment.
By the Court.' — Judgment affirmed.