Beyer v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 29 November 1901
• Citation: 112 Wis. 138,88 N.W. 57
• Court: Wisconsin Supreme Court
• Parties: BEYER v. ST. PAUL FIRE & MARINE INS. CO.

112 Wis. 138

88 N.W. 57

BEYER

v.ST. PAUL FIRE & MARINE INS. CO.

Supreme Court of Wisconsin.

Nov. 29, 1901.

Appeal from circuit court, Oconto county; Saml. D. Hastings, Judge.

Action by George Beyer against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action by plaintiff, as assignee, to recover a substantially total loss on two fire insurance policies assigned to him, respectively, by Louis Belongia and his wife, Dina Belongia, upon the second of which only are questions raised on this appeal. Mrs. Belongia is shown to have held title, substantially, to the entire family property. She leased a farm and operated it, her husband aiding to some extent, but being largely engaged in his own business as a lumberman and cruiser. She appears to have been the financial head of the household, and to have customarily bought all things needed therefor. Her policy here involved was a standard policy in the sum of $1,595, covering the following items: “(1) $200.00 on household furniture, including beds and bedding, and sewing machine, while contained in dwellinghouse; (2) $150.00 on wearing apparel while contained in said dwelling; (3) $50.00 on family provisions while contained in said dwelling; (4) $200.00 on camp equipage in dwelling and warehouse; (5) $200.00 on hay in barns or in stacks within 500 feet of buildings; (6) $150.00 on farming implements while in barns and sheds, not including threshing machine and power; (7) $165.00 on wagons, sleighs, and harnesses while in barns and sheds; (8) $300.00 on grain in buildings or in stacks on farm; (9) $180.00 on 2 binders and 1 mower in barn.” The fire occurred April 14, 1899, and the destruction of the personal property was, with few exceptions, complete. The plaintiff, at the employment of Mrs. Belongia, made out proofs of loss. Attached to each were lists of property substantially copied from an inventory made by her, with the aid of her daughter and husband, during the year preceding the fire, and extending up to a time variously fixed at from six weeks to one or two weeks before the fire. This list was handed over to Mr. Beyer, and incorporated in the proofs, and sworn to by the insured. The defense principally relied on was that in making such proofs the insured “fraudulently swore falsely touching the amount, quantity, value, and ownership” of the personal property mentioned. A special verdict was taken, in which the jury, in response to different questions, found that Dina Belongia did not “knowingly swear falsely” either as to her ownership, as to the quantity, nor as to the value of the insured property, and found the values of the property destroyed under the several policy classifications as follows (numbers correspond with those of classification above): No. 1, $563.97; No. 2, $261.12; No. 3, $139; No. 4, $100; No. 5, $175; No. 6, $82.20; No. 7, $195; No. 8, $300; No. 9, $125. Whereupon judgment was rendered for the amount so found, not exceeding the amounts limited in the policy, amounting to $1,122.20 on Mrs. Belongia's policy, and $300 upon Louis Belongia's policy, not here in controversy. Defendant, before judgment, moved to set aside each of the answers of the jury negativing false swearing, as also certain answers finding values of property destroyed, and for an order directing judgment for the defendant, and, in case of denial of such motion, that the special verdict be set aside and a new trial ordered. These motions were denied and judgment entered for the plaintiff, from which the defendant appeals.

Greene, Fairchild, North & Parker, for appellant.

D. G. Classon, for respondent.

DODGE, J. (after stating the facts).

The burden of argument in this case was devoted to the question of fact whether any evidence supported the findings that plaintiff did not knowingly swear falsely either as to her ownership, as to the quantity, or as to the value of the insured property. This question was raised on the trial by a motion after verdict to substitute affirmative for negative answers to the first, second, and third interrogatories of the special verdict, and by a motion for new trial. The rule of this court is absolutely settled that, if there is any credible evidence which to a reasonable mind can support an inference in favor of a party, the question is for the jury, and the court cannot assume to answer it, either upon motion for nonsuit or direction of verdict, or by substituting other answers after the verdict is returned. At that stage the court has nothing to do with the question of preponderance of fairly conflicting evidence. Lewis v. Prien, 98 Wis. 87, 73 N. W. 654;Clifford v. Railway Co., 105 Wis. 618, 81 N. W. 143;Nicoud v. Wagner, 106 Wis. 67, 81 N. W. 999. Upon motion to set aside a verdict and grant a new trial, the trial court enters a field of discretion in which he may consider whether there is such overwhelming preponderance of evidence against the verdict that it ought not to stand. While this discretion must be exercised judicially, and may be so clearly abused as to warrant reversal by this court, that will be done only in most extreme cases, of which but few have ever arisen. The superior opportunity of the trial court to understand the meaning of witnesses must always give to his decision on such a motion great weight. Jones v. Railway Co., 49 Wis. 352, 5 N. W. 854; Clifford v. Railway Co., supra; Nicoud v. Wagner, supra. There are many cases (among them, Wunderlich v. Insurance Co., 104 Wis. 382, 80 N. W. 467, cited by appellant) where we have held that human testimony may be so in conflict with conceded and established physical facts as to be incredible, for the reason that its truth is morally impossible, or so improbable in the course of nature as to approximate impossibility. Flaherty v. Harrison, 98 Wis. 559, 563, 74 N. W. 360. Illustrations are: Testimony of a plaintiff that he looked, and did not see a railway train which was conceded to be in plain sight (Groesbeck v. Railway Co., 93 Wis. 505, 67 N. W. 1120;Lenz v. Whitcomb, 96 Wis. 310, 71 N. W. 377); or testimony that plaintiff had at the time of collision driven past a preceding team, when, concededly, his vehicle was found behind it after the collision (Cawley v. Railway Co., 101 Wis. 145, 150, 77 N. W. 179).

The statements made in respondent's proofs of loss are assailed as constituting “fraud or false swearing by the assured touching some matter relating to the insurance or the subject thereof,” which by the terms of the policy renders it void. This clause in the standard policy is highly penal. It is not at all aimed at merely protecting the insurer against the specific effect of any fraud, but imposes upon the insured, as a penalty, forfeiture of the whole insurance, although the fraud might affect some trifling portion of it. The penalty upon the assured bears no relation either to the benefit he secures, nor the injury which he imposes. Killen v. Barnes, 106 Wis. 546, 82 N. W. 536. Naturally and properly, therefore, more has been required to constitute such fraud or false swearing as will avoid the policy than such as will justify rescission of a transaction thereby induced, or recovery of damages thereby occasioned. It is held by an unbroken line of decisions in this court that this penalty is not to fall unless the false swearing is knowingly and willfully done. It is not enough that it occurs through mistake, carelessness, or inadvertence, or even in unreasonable reliance on information derived from others. Parker v. Insurance Co., 34 Wis. 363;Dogge v. Insurance Co., 49 Wis. 501, 5 N. W. 889;Cayon v. Insurance Co., 68 Wis. 510, 32 N. W. 540;Vergeront v. Insurance Co., 86 Wis. 425, 56 N. W. 1096;F. Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38, 71 N. W. 69. In several of these cases it is apparently held that, in addition to the knowledge and purpose to falsify, there must be an intent to mislead the company, to induce it to act to its injury otherwise than it would if informed of the truth. Dogge v. Insurance Co., 49 Wis. 504, 5 N. W. 889;Cayon v. Insurance Co., 68 Wis. 515, 32 N. W. 540;F. Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 55, 71 N. W. 69;Gettelman v. Assurance Co., 97 Wis. 237, 243, 72 N. W. 627. Inasmuch, however, as this further quality was not held necessary by the trial court, and his action in that respect was favorable to appellant, we need not consider it now. Obviously, from these authorities, there is here no place for the doctrine that it is as much fraud to state as true that of which one is ignorant, as that which is known to be false. That doctrine is founded upon the idea that the one statement may be as misleading, and as injurious as the other to the opposite party, if he acts thereon. Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507;Beetle v. Anderson, 98 Wis. 5, 73 N. W. 560;Hart v. Moulton, 104 Wis. 349, 80 N. W. 599, 76 Am. St. Rep. 881;Krause v. Busacker, 105 Wis. 350, 81 N. W. 406. In that class of cases, actual misleading of the opposite party to his injury is essential; here it is not. F. Dohmen Co. v. Niagara Fire Ins. Co., supra; Worachek v. Insurance Co., 102 Wis. 88, 91, 78 N. W. 411. That severe rule has been adopted by this court as necessary to effectively protect those who innocently act in reliance upon statements of others, but it is inconsistent with the policy of the law which gives to clauses denouncing penalties or forfeitures the strongest reasonable construction to prevent such results. Wakefield v. Insurance Co., 50 Wis. 532, 7 N. W. 647;Kircher v. Insurance Co., 74 Wis. 470, 43 N. W. 487, 5 L. R. A. 779;Commercial Bank of Milwaukee v. Firemen's Ins. Co., 87 Wis. 297, 303, 58 N. W. 391;Reisz v. Supreme Council, 103 Wis. 427, 79 N. W. 430.

Much of appellant's brief and argument is addressed to the contention that the insured now concedes that she has not positive knowledge, but only information from others, as to...