Kircher v. Milwaukee Mechanics' Mut. Ins. Co.

• Decision Date: 15 October 1889
• Citation: 43 N.W. 487,74 Wis. 470
• Parties: KIRCHER v. MILWAUKEE MECHANICS' MUT. INS. CO.
• Court: Wisconsin Supreme Court

74 Wis. 470

43 N.W. 487

KIRCHER

v.MILWAUKEE MECHANICS' MUT. INS. CO.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from circuit court, Calumet county.

This action is to recover damages by reason of loss by fire of a two-story frame dwelling-house, January 10, 1886, upon a policy of insurance issued to the plaintiff by the defendant on or about October 1, 1884, containing the following provisions: “It is also agreed by and between the assured and the company that this policy shall be wholly void under any one or more of the following conditions, to-wit: * * * (6) If the premises shall at any time be occupied or used, in whole or in part, for any purpose, whether manufacturing or otherwise, different from that set forth in the application, or written in this policy, without the consent of this company indorsed hereon. * * * (8) If the risk shall be increased by means within the control of the assured, without consent thereto indorsed hereon.” The answer consisted of denials and an alleged forfeiture of the policy by reason of mis-occupation and misuse of said dwelling-house, or some part thereof. At the close of the trial the jury returned a special verdict to the effect that the plaintiff's tenants used the second story of said building in shaving hoops for a period of one week previous to the fire, but that such use ceased on Thursday night before the fire, and that such use did not materially increase the hazard and risk; that the plaintiff paid or caused to be paid to the defendant's agent for the defendant the sum of $11.75 as and for the premium for said insurance, and for the survey and application therefor. Upon motion of the plaintiff judgment was thereupon rendered in his favor upon such special verdict. From that judgment the defendant brings this appeal.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

J. E. McMullen, for respondent.

CASSODAY, J., ( after stating the facts as above.)

The mere fact that the plaintiff was allowed to testify to the value of the building was not such an error as should work a reversal. True, it was immaterial upon any of the issues submitted, but it affected no substantial right of the defendant, and hence is not ground for reversal. Section 2829, Rev. St. The same is true respecting the answer of the witness Dick as to his seeing Noah Welch and others outside of the house on Friday before the fire, with hatchets and axes, and saying that they were going into the woods to cut poles. So far as the statement tended to prove anything it was favorable to the defense, since it might be inferred therefrom that Welch intended to continue the use of a portion of the building in shaving hoops.

The question whether such use of the second story of the building materially increased the hazard and risk was one of fact for the jury. It was fairly submitted to them. There appears to be evidence sufficient to sustain their findings. We are unwilling to hold that the jury were concluded upon that point by the testimony of “men skilled in the business of insurance.” In fact the question presented involved no such special skill or knowledge as to render the “opinion” of such alleged experts admissible. Veerhusen v. Railway Co., 53 Wis. 689, 11 N. W. Rep. 433;Joyce v. Insurance Co., 45 Me. 168; Lawson, Exp. Ev. 203.

There was no error in allowing counsel to comment upon the fact that two persons who, according to one of the defendant's witnesses, went into the room with him where the hoop-poles were being shaved, had not been called as witnesses. Baker v. State, 69 Wis. 41, 33 N. W. Rep. 52.

The only question presented by the record requiring serious consideration is whether the use of the second story of the building in shaving hoops by the plaintiff's tenants, as found by the jury, was such as to work a forfeiture of the policy. Such use continued for one week, and terminated three days before the fire. Such use did not materially increase the hazard and risk, and in no way contributed to the injury. In the portion of the policy quoted in the statement of facts it was, in effect, agreed that if the premises should at any time be occupied or used, in whole or in part, for...