Spensley v. Lancashire Ins. Co.

• Decision Date: 03 March 1885
• Parties: SPENSLEY, ADM'X, ETC., v. LANCASHIRE INS. CO.
• Court: Wisconsin Supreme Court

62 Wis. 443

22 N.W. 740

SPENSLEY, ADM'X, ETC.,

v.LANCASHIRE INS. CO.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Error to circuit court, Rock county.

The plaintiff's intestate was living and had a dwelling-house in Iowa county, May 28, 1878. On that day it was totally destroyed in a tornado. At the time of the destruction the house and personal property therein were insured against fire or lightning by the defendant. Soon after, this action was commenced upon the policy. On the first trial, which was in Dane county, the plaintiff was nonsuited. The judgment entered thereon was reversed by this court, and the cause was remanded for a new trial. 54 Wis. 433;S. C. 11 N. W. REP. 894. The venue was then changed to Rock county, and the case retried before Judge BENNETT and a jury. Seventeen witnesses were sworn and examined on the part of the plaintiff, and their testimony tended to prove that the motive power of the storm or tornado was electricity or lightning, and two of them, John H. Tice and Elisha Gray, as experts, gave testimony tending to prove that the storm was of electrical origin, and the destruction of the house was due to the effects of lightning or electricity. On the part of the defense, T. C. Chamberlain, W. W. Daniels, John P. Finly, F. A. Smith, C. H. Haskins, C. S. Smith, J. E. Davis, F. E. Nipher, and James C. Watson gave testimony, as experts, tending to prove that the motive power of tornadoes is wind, and that the cause of the destruction of the house was due to the effects of wind, and not lightning or electricity. The learned trial judge, among other things, instructed the jury:

“The same rules of law which govern the interpretation and construction of other written contracts and agreements on other subjects, are equally applicable to contracts of insurance, and must govern in their construction and interpretation. And the phrase above quoted from the policy, and the words it contains, are to be construed according to their sense and meaning, as collected from the words themselves and the entire phrase; and in arriving at their sense and meaning the words themselves are to be understood in their plain, ordinary, and popular sense. In other words, the best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it, for it may be safely assumed that such was the aspect in which the parties themselves to the contract viewed it. A result thus obtained is exactly what is obtained from the ordinary rule of intention; and the word ‘lightning,’ in this policy of insurance, must be understood in its plain, ordinary, and popular sense.

It is conceded by both parties to this litigation that the property insured was destroyed in a tornado. But the plaintiff contends that the active agent and real direct cause of its destruction was lightning; while the defendant contends that the proximate cause of its destruction and loss was violent windstorm, commonly called a ‘tornado,’ and that lightning had nothing to do with it, and that electricity was not the cause of the tornado, and was not an active agent in the ruin and destruction which marked its path through the country. This policy is a general insurance against lightning, and most certainly covers all known effects of electricity coming under the general head of lightning. Webster defines lightning as ‘a discharge of atmospheric electricity, accompanied by a vivid flash of light, commonly from one cloud to another, sometimes from a cloud to the earth. The sound produced by the electricity in passing rapidly through the atmosphere constitutes thunder.’ He also defines ball lightning as a rare form of lightning, seen as a globe of fire moving from the cloud to the earth; chain lightning is lightning in angular or zig-zag and often forked flashes. And the Imperial Dictionary says that ‘lightning is a sudden discharge of electricity from a cloud to the earth, or from the earth to a cloud, or from one cloud to another; that is, from a body positively charged to one negatively charged, producing a vivid flash of light, and usually a loud report called thunder.’ Webster defines a tornado as ‘a violent gust of wind, or a tempest, distinguished by a whirling, progressive motion, usually accompanied with severe thunder, lightning, and torrent of rain, and commonly of short duration and small breadth; a hurricane.’ And other dictionaries and encyclopedias give substantially the same definition; and they tell us that a hurricane is generally accompanied by thunder and lightning, and rain and hail; and the Imperial Dictionary says that ‘they appear to have an electrical origin.’ And the Imperial Dictionary defines electricity as ‘the name given to the cause of a series of phenomena exhibited by various substances, and also to the phenomena themselves; that we are totally ignorant of the nature of the cause, whether it be a material agent or merely a property of matter. But as some hypothesis is necessary for explaining the phenomena observed, it has been assumed to be a highly subtile, imponderable fluid, identical with lightning, which pervades the pores of all bodies, and is capable of motion from one body to another. Electricity, when accumulated in large quantities, becomes an agent capable of producing the most sudden, violent, and destructive effects, as in thunder-storms; and even in its quiescent state it is extensively concerned in the operations of nature.’

I have called your attention to the definition of the words ‘lightning,’ ‘electricity,’ and ‘tornado,’ that you may more readily see and arrive at their meaning in their plain, ordinary, and popular sense. (The plaintiff alleges that the loss and destruction of the property covered by this policy of insurance, and the consequent damage arising from such loss and destruction, were caused by lightning; and, this being denied by the defendant, the burden of proof is upon the plaintiff upon this issue, and the plaintiff must show by a preponderance of testimony that such property was destroyed by lightning. I mean, by a preponderance of evidence, that which, after being carefully analyzed and weighed by you, is the most weighty, satisfactory, and convincing. In other words, the plaintiff must produce on the trial evidence more weighty, satisfactory, and convincing, in proof of the fact that this property was destroyed by lightning, than is produced by the defendant to show that it was not.)

(In determining the weight and credit to be given to the testimony of the different witnesses in the case, it is proper for you to consider the relationship of any of them to the parties, if the same is proved; their interest, if any, in the event of the suit; their temper, feeling, or bias, if any has been shown; their knowledge, intelligence, and means of information upon the subjects upon which they have been called to give evidence. And where witnesses are otherwise equally credible, and their testimony otherwise equally fair and entitled to credit, greater weight and credit ordinarily are to be given to those whose capacity, intelligence, knowledge, and means of information are greater upon subjects upon which they give evidence.)

The office or function of a witness being to inform the court and jury respecting the facts of any particular case, their opinions are not in general receivable as evidence. The rule is based on the assumption that the tribunal before whom the testimony is given is capable of forming a judgment upon the facts in the case. But there are exceptions to this rule; and on questions of science, skill, trade, and the like, persons conversant with the subject-matter, called by...