Wunderlich v. Palatine Ins. Co.

• Decision Date: 20 October 1899
• Docket Number: No. 59.,59.
• Citation: 80 N.W. 467,104 Wis. 382
• Parties: WUNDERLICH ET AL. v. PALATINE INS. CO. ET AL.
• Court: Wisconsin Supreme Court

104 Wis. 382

80 N.W. 467

WUNDERLICH ET AL.

v.PALATINE INS. CO. ET AL.

No. 59.

Supreme Court of Wisconsin.

Oct. 20, 1899.

Appeal from circuit court, Langlade county; John Goodland, Judge.

Action by H. S. Wunderlich and others against the Palatine Insurance Company and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

This is a consolidated action brought by plaintiffs upon 19 policies of insurance, aggregating $20,500, covering certain lumber owned by them, which, it is claimed, was destroyed by fire on May 6 and 7, 1898. The defendants answered, admitting the fire, and compliance with the conditions precedent as to notice and proofs of loss, and denying the value of the property destroyed. The answer also sets up, as a defense, fraud and false swearing by the plaintiffs in relation to the subject-matter of the insurance, under a condition in the policy which says: “This entire policy shall be void * * * in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after loss.” It was charged that the plaintiffs were guilty of fraud and false swearing in their proofs of loss, and also in their examination under the policy, wherein they stated their loss to be 3,011,032 feet of lumber, besides some bicycle strips and shingles, well knowing that such statements were false. These false statements were alleged to have been made for the purpose of deceiving the defendants as to the amount of the actual loss by said fire, and by that means obtained payment of a sum largely in excess of the real loss sustained. A special verdict was returned by the jury, in which they found (1) that the lumber was wholly destroyed by fire on the night of May 6, and morning of May 7, 1898; (2) that said lumber was insured in the sum of $24,000, and that the defendants carried insurance thereon in the sum of $20,500; (3) that the plaintiffs did not make any false entries in any of their books of account relating to the insurance or the subject thereof; (4) that the plaintiffs did not swear falsely, either in their proofs of loss or in their examination under the policies, touching any matter relating to the insurance or the subject thereof; (5) not answered; (6) that the amount of lumber destroyed by fire was 2,602,544 feet, bicycle strips 17,761, shingles 498 1/2 thousand; (7) that the value of the material destroyed was $27,109.75. The proofs of loss showed the aggregate amount of maple, birch, ash. pine, rock elm, soft elm, basswood, hemlock, and cedar lumber destroyed, with the price per thousand feet. The total number of feet was placed at 3,011,032, of the value of $31,691.16, including the bicycle strips, 17,761 pieces. The shingles were valued at $373.68, making the total value of the property destroyed $32,065.04. The amount of lumber destroyed seems to have been arrived at in the following manner: The plaintiffs claimed to have made an inventory on December 29, 1897. To this they added logs cut that winter on a quarter section of land they had purchased, and logs purchased of farmers, and from the total deducted lumber sold up to the time of the fire and logs unsawed at that date. From these figures we get the following:

+----------------------------------------+
                ¦Inventory December 29, 1897   ¦1,606,739¦
                +------------------------------+---------¦
                ¦Logs from S. E. 1/4 20, 31, 12¦1,187,720¦
                +------------------------------+---------¦
                ¦Logs purchased                ¦454,730  ¦
                +------------------------------+---------¦
                ¦                              ¦3,249,189¦
                +------------------------------+---------¦
                ¦Lumber sales                  ¦100,000  ¦
                +------------------------------+---------¦
                ¦Logs unsawed                  ¦125,000  ¦
                +----------------------------------------+
                

The defendants claimed that the inventory had been padded, and that no such amount of lumber was on hand; that the scale of the logs cut on plaintiff's land had been fraudulently increased over 300,000 feet; that the amount of logs purchased from farmers had been increased 100,000 feet; and that such increase had been in the most valuable kinds of logs. A motion to set aside the verdict was denied, and judgment was entered for the plaintiffs. The insurance companies have brought this appeal.

Mylrea & Bird, for appellants.

T. W. Hogan and John Barnes, for respondents.

BARDEEN, J. (after stating the facts).

(1) Upon the trial, the defendants offered certain portions of the plaintiffs' testimony taken upon their examination as adverse parties under the statute. This was objected to on the ground that none of it should be received unless it was all offered, which objection was sustained. Thereupon the defendants offered the whole examination in evidence under protest. One difficulty with the defendants' complaint is that the record fails to disclose what portions of the deposition they desired to offer in evidence. The prevailing rule is, as we think, that either party may read such parts of a deposition as are relevant and relate to any distinct transaction, and that the other party may introduce such other portions as relate to the same subject, and tend to explain that which has been read. Jones, Ev. § 703; Parmenter v. Railway Co., 37 Hun, 354; Smith v. Crocker (Sup.) 38 N. Y. Supp. 268;Parker v. Chancellor, 78 Tex. 526, 15 S. W. 157;Watson v. Wintson (Tex. Civ. App.) 43 S. W. 852;Gas Co. v. Woodhull, 14 C. C. A. 464, 67 Fed. 451. The court was evidently wrong in holding that the entire deposition must be offered, but we should not feel justified in reversing the case on that ground, because the record fails to show a sufficiently definite offer by defendants, and it is not clear that they suffered injury from being compelled to offer the entire examination. Of course in examinations of this kind, the plaintiff would have no right to offer the deposition so taken in the first instance; but should the defendants offer a portion, relating to a given subject, the other side would have the right to read additional portions as explanatory thereof.

2. Considerable criticism is made because the court failed to include in the special verdict certain questions requested by the defendants. The verdict submitted seems to cover all the material issues in the case. The questions requested relate to specific charges of fraud in the plaintiffs' transactions, and the court might, in the exercise of a proper discretion, have divided up the issue on that question. Questions 3 and 4, taken in connection with the charge of the court, seem to cover the issues involved, and, if there were no other errors, the judgment would have to stand.

3. While the jury were deliberating, they requested to be allowed to examine some of the exhibits that had been introduced in evidence. The defendants objected as to some of the exhibits, and the plaintiffs as to others, and the court held that it was improper to allow any of them to be inspected by the jury, except by consent of counsel. This is claimed to be error. The court was certainly wrong as to his power in that regard. The matter rests in the wise discretion of the court. 2 Thomp. Trials, § 2575; Baxter v. Railroad Co. present assignment. It is a power to be exercised with prudence and discrimination. Situations might arise when the jury might be greatly helped by an inspection of some books or writing in evidence. Trial courts are well able to take care of these matters, and it would be an extreme case, with apparent injustice, that would warrant interference by this court.

4. We come now to the most serious question in the case. We are asked to set aside the findings of the jury on the question of fraud and false swearing, as being inconsistent and contrary to the overwhelming weight of the evidence. The importance of this question to the parties, and the large amount involved in this litigation, has led us to examine the evidence with great care, and to canvass it in all its various aspects. Many cases have been decided in this court in which the rules that govern in cases of this kind have been laid down. That they are not all in perfect accord is certain, but running through them all is the underlying principle that, when all the reasonable probabilities, together with the overwhelming weight of testimony, is against the verdict, it cannot stand, even though it has passed the scrutiny of the trial court. In Bank v. Ross, 91 Wis. 320, 64 N. W. 993, Mr. Justice Pinney stated the rule to be that where there was evidence on both sides of a question, and the court below had denied a new trial, this court was powerless to grant relief, unless it could be said there was an entire want of competent evidence to support the verdict. This was stating the rule with greater strictness than was ever laid down in any case before or since. Such a rule would practically foreclose this court from examining into the evidence in a case, if it were found that one witness had sworn to the existence of facts that would support the verdict, although he might be impeached by all of the surrounding circumstances. Great deference is always paid by this court to the decision of the lower court upon questions of evidence, but cases arise when it is apparent that the judge has overlooked or ignored some of the potent facts in the case, and has suffered a verdict to stand when it ought to have been set aside. In Badger v. Cotton Mills, 95 Wis. 599, 70 N. W. 687, it was said: “The jury will not be warranted in finding the existence of a fact on the positive testimony of a witness, which is contrary to conceded facts or matters of common knowledge, or to all reasonable probabilities.” This rule has been approved in Roth v. Manufacturing Co., 96 Wis. 615, 71 N. W. 1034;Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360;Lee v. Railway Co., 101 Wis. 352, 77 N. W. 714; and other cases. When it appears that the trial court has sustained a verdict...