Hill v. Am. Sur. Co.
| Decision Date | 07 January 1902 |
| Citation | 88 N.W. 642,112 Wis. 627 |
| Parties | HILL, CLERK OF CIRCUIT COURT, v. AMERICAN SURETY CO. ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.
Action by A. W. Hill (Ringenoldus, successor), as clerk of the circuit court for Milwaukee county, against the American Surety Company, impleaded with E. B. Winterhalter. From a judgment for plaintiff, defendant American Surety Company appeals. Affirmed.
After the decision of this case which is reported in 107 Wis. 19, 81 N. W. 1024, 82 N. W. 691, a further hearing was had in the circuit court, in which the plaintiff added to his former evidence the testimony of a certain insurance agent, who testified to the obtaining of insurance by assignees and receivers during the years 1893 and 1894 to a considerable number; also that of four men who had been assignees in one or more assignments in Milwaukee during the same period, and who had themselves obtained insurance. The defendant offered the evidence of a very large number of insurance agents to the effect that it had not been customary with them during those years to write insurance for assignees and receivers, and especially so under circumstances more or less resembling those in the present case. Those witnesses made various qualifications as to the uniformity of that custom under variant circumstances. The court found, among other things, that “the testimony and evidence adduced on the part of the defendants does not show that by ordinary diligence the said assignee could not have procured the consent of the insurance companies then carrying the said risk to a transfer of the existing policies to him as such assignee, or could not have obtained new insurance for the protection of the said creditors”; also that, had he exercised due diligence, “he would have been able to have kept or procured fire insurance upon said property prior to the date of the said fire on the 7th day of July, 1894, to an amount exceeding the amount of such unpaid claims of said creditors.” Accordingly, judgment was rendered in favor of the plaintiff for the total amount due the creditors, together with interest from the time when the receiver's accounts were settled, May 29, 1897, as a date at least prior to which such insurance could have been collected. From that judgment the defendant American Surety Company appeals.Miller, Noyes & Miller, for appellant.
Quarles, Spence & Quarles, for respondent.
DODGE, J. (after stating the facts).
On the former appeal to this court all issues but one were decided, and the decision, right or wrong, must control the present aspect of the case. It is res adjudicata. Upon that hearing it was decided that the duty of Winterhalter as assignee included due diligence to procure insurance; that he had made no efforts whatever so to do, and was guilty of negligence; and that the circumstances were such that in all reasonable probability due diligence on his part would have been effective to have obtained insurance sufficient at least to have protected the unpaid amounts due creditors,--some $22,300,--and that thereby the plaintiff had established a case of breach of the bond, and prima facie damages up to the amount of the claims, to overcome which the burden was upon the defendants to establish “either that the assignee's negligence was not injurious at all, or, if at all, for what part of the loss prima facie resulting therefrom; either that by due diligence he could not have obtained any insurance, or not enough to protect plaintiff from the whole of the loss.” The cause was therefore remanded, in order that the court “should consider and decide, upon the competent evidence already received and such additional evidence as may be offered, upon the single question whether the assignee's negligence in making no efforts to obtain any insurance caused less injury to the plaintiff than the amount of the unpaid claims, and, if so, how much less.” The court below, after hearing all such additional evidence, has resolved that question in the negative, and has found that the defendant has not proved that such negligence was innocuous, under the burden of proof decided to rest upon it by this court. After a careful review of all the evidence brought up by the bill of exceptions settled upon the last hearing, and of the evidence so far as it appears in this court from the printed “case” on the former appeal, we cannot say that this conclusion of the trial court is not justified. It is not necessary to reiterate the reasons for the rule so often stated that this court will not reverse the conclusion of the court below upon questions of fact unless the preponderance against the same is so overwhelming as to convince us, either by itself or in connection with other things appearing in the record, that the court erroneously applied rules of law, or through mistake, prejudice, or other cause did not give it proper consideration. Wyss v. Grunert, 108 Wis. 38, 83 N. W. 1095;Remington v. Railway Co., 109 Wis. 154, 159, 84 N. W. 898, 85 N. W. 321. Of this we can find nothing in the present record. In this connection it should be noted that, either through error of the circuit court clerk or misdirection of the appellant, the so-called record does not include the bill of exceptions showing the evidence which was taken prior to the first appeal. That bill of exceptions, when settled, became as absolutely a part of the record as the pleadings themselves (Mead v. Walker, 20 Wis. 518), and the failure of the clerk to transmit it upon the present appeal was a clear breach of his duty. The inclusion in the present bill of exceptions of parts thereof which were read aloud to the court upon the last hearing of the case is mere work of supererogation. That entire evidence was in the “case,” and present for consideration under the direction of this court. We have endeavored to supply the omission, so far as possible, by consulting the case and briefs filed on the former appeal.
Some specific assignments of error are urged upon our attention: First. That the plaintiff was allowed to read to the court the testimony given by deposition of certain witnesses which had been received upon the former trial and included in the former bill of exceptions, on the ground...
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