Bloch v. Am. Ins. Co.

• Decision Date: 21 May 1907
• Citation: 132 Wis. 150,112 N.W. 45
• Parties: BLOCH v. AMERICAN INS. CO. ET AL.
• Court: Wisconsin Supreme Court

132 Wis. 150

112 N.W. 45

BLOCH

v.AMERICAN INS. CO. ET AL.

Supreme Court of Wisconsin.

May 21, 1907.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Consolidated actions by Benjamin Bloch against the American Insurance Company and others. From judgments for plaintiff, defendants appeal. Modified and affirmed.

Seven appeals, each from a separate judgment of the circuit court for Marinette county, entered in a consolidated action of the respondent against the appellants upon policies of fire insurance. There was a special verdict finding that the fire which on January 30, 1905, destroyed plaintiff's property at Wausaukee, was not set by or at the instigation of the plaintiff; that the plaintiff had no fireworks in his store and no gasoline other than that in his lamp, and that he neither knowingly swore falsely nor fraudulently concealed or misrepresented concerning his loss; and that the actual cash value of the stock of merchandise destroyed by the fire was $11,799.18. The plaintiff had on his property destroyed by fire policies of insurance as follows: In the American Insurance Company, dated September 14, 1904, for $1,000; Anchor Fire Insurance Company, dated January 26, 1905, for $500; British American Insurance Company, dated September 20, 1904, for $2,000; Camden Fire Insurance Association, dated September 14, 1904, for $1,000; Fire Association of Pennsylvania, dated May 12, 1904, for $2,000; Germania Fire Insurance Company, dated April 9, 1904, for $1,500; Home Insurance Company, dated May 12, 1904, for $2,000--Total $10,000. Each of these policies was in the Wisconsin standard form, was in force when the fire occurred, and had an agreement attached thereunto and part thereof in the following words: “Reduced Rate Three-Fourths Limitation Clause. At the option of the assured and in consideration of the reduced rate of premium charged for this policy, permission is hereby granted for other insurance to an amount, including this policy aggregating not to exceed seventy-five (75) per cent. of the actual cash value of the property; provided, however, that if at the time of the fire the total insurance on the property shall exceed said seventy-five (75) per cent., this policy shall thereby become void only in proportion of such excess to such total insurance. When this clause is attached to and made part of a policy covering two or more items, this clause shall be construed as applying separately to each item of this policy. This form is attached to and made a part of policy No. ______ of the ______ Insurance Company of ______.”Eastman & Martineau (Wm. D. Van Dyke, of counsel), for appellants.

W. B. Quinlan, for respondent.

TIMLIN, J. (after stating the facts).

The appellants raise by proper objection, exception, and assignment of error in their brief the question whether the trial court should not have set aside the answers of the jury to those questions of the special verdict finding that the insured did not keep fireworks in his stock, or keep in his premises gasoline, knowingly swear falsely in his proofs of loss, or fraudulently conceal from or misrepresent to the insurers. We have examined the evidence and the rulings of the circuit court in these particulars, and are convinced that these assignments of error raise pure questions of fact passed upon by the jury and by the court below and found adversely to the appellants upon confiicting evidence, and therefore we have no right to revise or reverse such findings.

The same is true of the eighth finding, fixing the value of the goods destroyed.

Certain witnesses having testified that their attention was first attracted to the fire by a loud explosion, and certain others having found after the fire in the basement, burned but intact, a five-gallon can of the kind ordinarily used for gasoline, the plaintiff, to rebut the possible inferences which the jury might draw from these facts, offered as an expert witness one Luckenbach, who testified that he was a graduate pharmacist, and had acquired “the knowledge of explosives and their action and the laws that operate on them.” In answer to a direct question by the court, he stated that he had knowledge from his own experience of the action of gasoline and of sugar as explosives. Upon this preliminary showing of qualifications as an expert he was allowed to give opinion evidence. While erudition or experience in pharmacy does not appear to us to peculiarly qualify one to testify as an expert on explosives, yet the witness testified that he had actual knowledge on this subject from his own experience. This established prima facie some degree of qualification, and then it was for the party objecting to his competency as an expert to show by cross-examination, either preliminary or final, that he lacked competency. Not having done this, and the subject of explosives having a practical as well as a scientific aspect, we must hold that, considering the collateral nature of the question to which his testimony was directed, it was not error to permit him to give his opinion. Nor was it prejudicial error to permit the witness Hannah Dunn, in rebuttal of defendants' evidence that the goods carried by respondent in stock were cheap and inferior, to bring with her and exhibit in connection with her testimony to the effect that the articles purchased by her out of plaintiff's stock were of good quality the articles themselves. The evidence seems to establish that the plaintiff's wife exercised a very general agency for him in the management of his store, in taking inventories, ordering, purchasing, and selling goods, and within such agency, and in relation to business matters which she transacted as agent for her husband, she was a competent witness notwithstanding her husband was plaintiff. No ruling of the learned circuit judge has been called to our attention which transgressed the rules of law relative to the admission of such evidence. If the agency of the wife is very general, and the transactions in which she acted for her husband numerous, her competent evidence must have a corresponding scope. The agency must have been real, not pretended, and, if it exist prior to transactions in her husband's presence and is not solely sought to be established by such transactions, we see no reason why she should not be competent to testify to transactions by her as his agent, the whole or some part of which took place in her husband's presence. Menk v. Steinfort, 39 Wis. 370.

The appellants next contend that within the rule of Van De Bogart v. Paper Company, 127 Wis. 104, 106 N. W. 805,Musbach v. Chair Company, 108 Wis. 57, 84 N. W. 36, and Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311, the trial court erred in its instructions to the jury, in that he “repeatedly told the jury what each party claimed with reference to the question discussed and gave such other instructions as to necessarily inform the jury of the effect of their answers upon the rights of the parties.” Illustrations are offered in appellants' brief as follows: “Discussing the first question, as to whether or not the plaintiff caused the fire to be set, [the court] said: ‘It is claimed by the defendants that he did--that he denies.’ ” Also: “Now there is no positive testimony. No witness swears that they saw Mr. Bloch set fire to this building, and there is no claim that anybody did see him, but the defendants claim that the facts and circumstances established in the case are such as to warrant the jury in believing that he did do it.” Also: “While this charge is a criminal charge in its nature, something for which Bloch might be criminally responsible, if it were true”; and, further, that in this case it is not required to be proven beyond reasonable doubt, etc. Also: “Now the testimony in support of the contention of the defendants that he did have [[[fireworks] is that of the party from whom the fireworks were bought.” Also: “By the terms of his policy, the plaintiff is obliged to be fair and square with the insurance companies who insured him, and to conceal nothing and to disclose everything which would tend to throw light upon the extent and amount of his loss and injury and damage, and, if he purposely and intentionally either misstated anything or concealed anything that honest dealing or good faith between the parties would require him to reveal, then he is guilty of the fraud and misrepresentation that is referred to in this question, and it should be answered in the affirmative.” Counsel for appellant say of the foregoing: “This plainly told the jury what the contract of the parties was. * * * This language is very much more objectionable than the language criticised in Van De Bogart Case,” 127 Wis. 104, 106 N. W. 805. For the same reasons, the following portion of the charge on the subject of damages is criticised: “Now, as to the figures on this question, I think Mr. Quinlan misstated the exact amount that they claim a little. The proofs of loss as I have it here, and I think they are all alike, claims $13,108.31. I do not recall now that in any figures made by the defendant's counsel they have figured out any exact amount which they claim should be the maximum amount that the jury could find.” The point that the court erred in each of the foregoing particulars by informing the jury of the effect of the answers to the question of the special verdict under consideration is properly raised by due exception and assignment of error, and we are required to pass thereon and do so by determining that the quoted portions of the charge are not erroneous or improper. The instructions of the trial court on the sixth question of the special verdict are also brought before us for review. They were: “Now the sixth question: Did the plaintiff either in his proofs of loss or when examined under oath by the representatives of the defendants knowingly swear falsely concerning the quantity or value of goods destroyed by...