Ryan v. Rockford Ins. Co.

• Decision Date: 14 October 1890
• Citation: 46 N.W. 885,77 Wis. 611
• Parties: RYAN v. ROCKFORD INS. CO.
• Court: Wisconsin Supreme Court

77 Wis. 611

46 N.W. 885

RYAN

v.ROCKFORD INS. CO.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Dane county.

This is an action upon a policy of fire insurance, covering a dwelling-house and barn and the contents, situated upon the premises occupied by the plaintiff in the town of Dunn. The policy was dated June 15, 1888, and contains a provision to the effect that the same would be void unless the plaintiff was the sole and unconditional owner of the premises. The defense say, among other things, that the plaintiff was not such owner. It is conceded that the premises were conveyed to Ellen Ryan, then wife of plaintiff, on April 24, 1884, and that she died September 21, 1884. The plaintiff claims to have proved title in himself by the record of a deed of the premises from Ellen Ryan to himself, dated April 24, 1884, and recorded in the register's office July 13, 1888, but which original deed had been destroyed in the fire. The defense claimed, and gave evidence upon the trial tending to prove, that the blank upon which said deed was written and so recorded contained upon its upper right-hand corner these words, to-wit: “M. J. Cantwell, Law-Blank Publisher, Madison, Wis.;” and that no such blanks ever existed until after April, 1887, nearly three years after the death of the grantor named in said deed. At the close of the testimony, the plaintiff's counsel requested the court to submit to the jury the following question, which, for convenience, is hereby designated “Question A,” to-wit: “Did Ellen Ryan, on the 24th day of April, 1884, execute a deed to Phil E. Ryan, conveying to him the real estate upon which the property insured was situated at the time the policy was issued to him by the Rockford Insurance Company?” The court submitted the said question to the jury with the following remarks, to-wit: “If you answer that question ‘Yes,’ it would be in accordance and consistent rather with a general verdict for the plaintiff. If you answer it ‘No,’ it would be inconsistent with a general verdict for the plaintiff. You can see you will answer that question ‘Yes' or ‘No.’ ” Thereupon the counsel for the defendant asked the court to submit to the jury the following question, to-wit: “(1) Did the blank upon which the deed in question, purporting to convey the premises from Ellen Ryan to Phil E. Ryan, was written, contain upon the upper right-hand corner, upon the line near the top margin on the deed, the words: ‘M. J. Cantwell, Law-Blank Publisher, Madison, Wis.’ ” The court submitted that question to the jury, with the following remark: “If you have understood the instructions which I have given you, the answer to that question, one way or the other, would not necessarily alone determine your verdict; and if you should say ‘Yes,’ and then say ‘Yes' in answer to this next question, to-wit, ‘(2) If you find that the deed in question did contain such words, do you further find that deeds containing such words upon the upper right-hand corner were [not] in existence upon the 24th day of April, 1884?’ ”--which last question was submitted with the following remark: “If you answer both those questions favorably to the defendant, it would be consistent with a general verdict for the defendant, and inconsistent, gentlemen, with any other.” The court thereupon charged the jury general, and, after such charge, they retired to deliberate over their verdict, about 5 o'clock in the afternoon of November 30, 1889, and continued such deliberation until 9:40 P. M., when they returned into court with a general verdict in favor of the plaintiff, and assessing his damages at $1,896.44, and at the same time with an answer “Yes” to said question A propounded by the plaintiff's counsel, and both said general verdict and said answer and question A were thereupon handed to the court, and laid by him on his desk. The judge of said court thereupon informed the jury that they had not answered questions 1 and 2 propounded by defendant's counsel. The foreman thereupon replied that he did not suppose it was necessary since they had answered said question A. The court replied to the effect that it was necessary to answer the first question propounded by the defendant's counsel; that, if they answered that question “No,” it would not be necessary to answer No. 2; but if they answered that question “Yes,” then it would be necessary to answer No. 2. The general verdict and answer to said question A remained lying on the court's table all this time, and until the jury finally returned into court with answers to questions 1 and 2 propounded by defendant's counsel. The court thereupon amended said second question by striking out the word “not.” The jury then retired again, and, after an absence of 1 hour and 20 minutes, returned into court with an answer “Yes” to the first question propounded by the defendant's counsel, and the foreman then and there stated to the court that they had found, as an answer to the second question submitted by the defendant's counsel, the following, to-wit: “That there was this one deed in existence on the 24th day of April, 1884, or the blank on which it was written, with those words...