F. Dohmen Co. v. Niagara Fire Ins. Co. of City of New York

• Decision Date: 30 April 1897
• Citation: 71 N.W. 69,96 Wis. 38
• Parties: F. DOHMEN CO., LIMITED, v. NIAGARA FIRE INS. CO. OF CITY OF NEW YORK.
• Court: Wisconsin Supreme Court

96 Wis. 38

71 N.W. 69

F. DOHMEN CO., LIMITED,

v.NIAGARA FIRE INS. CO. OF CITY OF NEW YORK.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by F. Dohmen Co., Limited, against the Niagara Fire Insurance Company of the City of New York. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action on a policy of fire insurance issued on the 30th day of June, 1892, for the term of one year, insuring plaintiff's property, described therein, to the amount of $2,500. Such property consisted of a wholesale stock of drugs, medicines, paints, and other merchandise kept by plaintiff in its wholesale establishment in the city of Milwaukee. The policy was one of several by which insurance was carried on such property to the amount of $65,500. On the 28th day of October, 1892, such property was partially destroyed by fire. Plaintiff claimed to have suffered damages on such property by such fire in a sum in excess of $57,000. This action was brought to recover the proportionate share of such loss represented by the policy in question. The complaint is in the usual form. Defendant answered, putting in issue the amount of the loss, and alleging that the policy contained a provision rendering it void in case of any fraud or false swearing on the part of plaintiff, and that plaintiff had been guilty thereof. Several questions were raised respecting the practice under the statute providing for a change of venue in civil cases. On the ground of prejudice of the presiding judge, a motion was made to change the place of trial to the circuit court, which was denied for defects in the affidavit of prejudice. Thereafter plaintiff withdrew all objection to a change of venue, and entered into a stipulation with defendant's counsel consenting to such change. An order was entered accordingly. More than 20 days thereafter elapsed before there was any effort made to pay the clerk's fees, and for that reason the papers were not transmitted. After the expiration of the time limited for the payment of the clerk's fees, defendant's counsel offered to pay the same, and demanded of the clerk that the papers be transmitted, which was refused. Thereupon defendant's counsel moved the court for an order that the clerk transmit the papers, which motion was denied, with $10 costs, and defendant's counsel duly excepted. Numerous exceptions were taken by defendant's counsel to the reception and rejection of testimony, to the judge's charge to the jury, to refusals to charge the jury as requested by defendant's counsel, and refusals to submit questions proposed by them, each of which will be referred to in the opinion so far as necessary. A special verdict was rendered, whereby the jury found all the issues in plaintiff's favor, and assessed its damages at $2,208.40, whereupon defendant's counsel moved the court to set the verdict aside as contrary to the evidence and contrary to law, and for alleged errors committted on the trial, which motion was overruled, and exception to such ruling duly taken. Judgment was thereupon, on motion, entered in plaintiff's favor on the verdict, and defendant appealed.Miller, Noyes, Miller & Wahl and J. V. Quarles, for appellant.

Timlin & Glicksman, for respondent.

MARSHALL, J. (after stating the facts).

It is contended on the part of the appellant that, an order to change the place of trial having been duly made on a stipulation of the parties pursuant to section 2622, Rev. St., though defendant failed to pay the costs within 20 days after the making of such order, as required by section 2627, Rev. St., the clerk should, nevertheless, have transmitted the papers when the costs were paid, and, upon his refusal so to do, the court, on the motion made for that purpose, should have directed such transmission, and treated such motion, if necessary, in the nature of a motion to extend the original time therefor, and granted it. We cannot sustain this contention. Section 2627, Rev. St., provides as follows: “If such transmission be not made within twenty days from the making of the order to change the place of trial, * * * unless such time be extended, such order shall be deemed vacated, and no change for the same cause thereafter made.” Three things are essential to a change of venue in cases other than those mentioned in section 2621, Rev. St.: First, an application on some statutory ground; second, the entry of the order for the change; third, the payment of the clerk's fees, and transmission by him of the papers, within 20 days after the making of the order. If the last act be not performed as required, the proceeding for the change falls, and the clerk will have no authority thereafter to transmit the papers. Holt v. Coleman, 61 Wis. 422, 21 N. W. 297. It appears by the record that the clerk refused to recognize the existence of the order changing the venue after the expiration of 20 days from the making thereof, and that appellant's motion was made, not for an extension of time for trasmitting the papers upon the ground of excusable neglect or upon any other ground appealing to the discretion of the court, but it was made on the theory that the order was still in force, and that the clerk should have complied with appellant's request to transmit the papers upon payment of his fees, notwithstanding the expiration of the 20 days. It follows that the motion called for a decision of this question: Was the order, though entered by consent, vacated by lapse of time, under section 2627? There could be but one result of such a motion. The court had no other course to pursue but to deny it, without violating the plain provision of the statute, and the decision of this court in Holt v. Coleman, supra. It was competent for the court to grant an extension of time to transmit the papers, even after the expiration of the 20 days from the making of the order (Cartright v. Town of Belmont, 58 Wis. 370, 17 N. W. 237), had a motion, based on a proper showing to authorize it, been made; but no such motion was made.

It is further contended that the motion for a nonsuit should have been granted. Such contention is based on the theory that certain evidence, discussed in the paragraph that follows, was improperly admitted, and that without such evidence there was no competent proof of the loss sustained. The case, in respect to such loss, did not wholly rest on such evidence. There was evidence that a considerable quantity of goods was totally destroyed; also evidence, not objected to, that when the last inventory was taken--February, 1891--the value of the goods on hand exceeded $75,000; that the stock was still larger at the time of the fire, and that the goods saved from the fire were diminished in value thereby. The evidence which was objected to was offered and admitted to show the exact amount of the stock when the loss occurred. With that entirely out of the case, a verdict might properly have been rendered in plaintiff's favor; hence the motion for a nonsuit was properly denied.

It is further contended that the judgment should be reversed for error in allowing Fred Dohmen, Sr., and Henry Dohmen to testify from the corporation account books respecting the amount of goods on hand at the time of the fire. This is the evidence specially referred to in the preceding paragraph. Fred Dohmen, Sr., testified without objection to the amount of goods on hand as shown by the inventory of February, 1891, and also testified to the correctness of such inventory. With that as a starting point, and without verifying the correctness of the account books in any way, he was allowed, against objection, to testify to the amount of purchases from the time such inventory was made up to the time of the fire, also as to the amount of sales during such period, as recorded in such books. The value of the goods when the fire occurred was then determined by adding to the amount as shown by such inventory the amount of the subsequent purchases, and deducting therefrom the sales as shown by the books; then adding to the result the percentage of profit which the witness Fred Dohmen, Sr., said the plaintiff averaged to make in the business. Thus the question is clearly presented of whether the amount of stock on hand at the time of the fire, under the circumstances, could properly be established by testimony given of the contents of the books by a person who did not keep them, was not able to verify their correctness in any way, and without such correctness being verified in any manner, or the books being in evidence. That question must be answered in the negative. No authority has been brought to our attention, either by respondent's counsel or otherwise, that justifies the admission of such evidence. Just how to proceed in such a case is by no means free from difficulty. In a large business, obviously it is impossible to produce witnesses to testify of their personal knowledge respecting the amount of stock on hand, or to the purchases and sales which may have occurred during a long period of time. The bookkeeper cannot ordinarily be expected to testify to more than that the entries made by him are correct, according to the facts as reported to him in the regular course of business. Such information must necessarily come to him from a variety of sources; and to verify the same, except in the most important transactions, in a large business, would be utterly impossible. There is a surprising dearth of authority on the question, considering the frequency with which the difficulty must be met in adjusting losses under similar circumstances. The general principles of the law of evidence applicable to the subject, properly understood, will furnish a safe guide. One of the most familiar rules is that the best evidence the nature of the case is susceptible of must be produced. Greenl. Ev. § 82. From the very nature of the case, the only evidence of a definite...