Ziegler v. Hustisford Farmers Mut. Ins. Co.

• Citation: 238 Wis. 238,298 N.W. 610
• Parties: ZIEGLER v. HUSTISFORD FARMERS MUT. INS. CO. et al.
• Decision Date: 12 June 1941
• Court: United States State Supreme Court of Wisconsin

238 Wis. 238

298 N.W. 610

ZIEGLER

v.HUSTISFORD FARMERS MUT. INS. CO. et al.

Supreme Court of Wisconsin.

June 12, 1941.

Appeal from a judgment of the County Court of Dodge County; W. C. O'Connell, Judge.

Affirmed.

Action brought by Joseph Ziegler, executor of the estate of Henry Ziegler, deceased, against Hustisford Farmers Mutual Insurance Company and another insurer to recover the loss sustained by the destruction of farm buildings and equipment, covered by fire insurance policies issued by defendants. The only issues submitted to the jury were whether the assured, Henry Ziegler, deliberately set fire to the property and whether the loss was caused by his act. The jury found that he did not set the fire and the court entered judgment for plaintiff. Defendants appealed.George A. Hartman, of Juneau (Wilkie, Toebaas, Hart, Kraege & Jackman, of Madison, and W. F. Torkelson, of Madison, of counsel), for appellants.

Cannon & Meister, of West Bend (Thiel & Allan, of Mayville, of counsel), for respondent.

FRITZ, Justice.

Defendants contend that the court erred in instructing the jury (1) as to the degree of evidence by which the defendants were required to sustain their burden of proof as to arson by the insured and (2) as to the effect of the jury's answer to the special verdict; and (3) also erred in refusing to receive evidence on cross-examination of the assured's widow as to the terms of his will to show her interest in the property destroyed.

[1][2][3] The evidence upon which defendants relied to establish that the insured set fire to the property was merely circumstantial. In relation to that issue there was competent evidence under which the jury could find either way. But defendants contend that the court erred in using the terms “clear and satisfactory preponderance of the evidence” in the following instructions: “The burden of proof is upon the defendants to show by a clear and satisfactory preponderance of the evidence that Henry Ziegler, the assured, deliberately set fire to the insured property ***. *** in order to find in favor of the defendants, the parties who have such burden of proof, you must be satisfied of the truth of their allegations in respect thereto to a reasonable certainty by a clear and satisfactory preponderance of the evidence. *** As stated the preponderance of the evidence in this case on the part of the defendants, must be clear and satisfactory.” Defendants claim these instructions required defendants to prove arson beyond a reasonable doubt or, in any event, by more than a preponderance of the evidence. This claim and the contention based thereon cannot be sustained.

The instructions neither mean nor require that defendants had to prove arson beyond a reasonable doubt in order to discharge their burden of proof in respect to that issue. The use of the words “to a reasonable certainty” in the instruction that defendants must satisfy the jury in respect to the alleged arson “to a reasonable certainty by a clear and satisfactory preponderance of the evidence” do not require the defendants to satisfy the jury “beyond a reasonable doubt”. As was held in Pelitier v. Chicago, etc., R. R. Co., 88 Wis. 521, 528, 60 N.W. 250, 252, the expression satisfied by the preponderance of the evidence “to a reasonable certainty” does not mean the same as the expression “satisfied beyond a reasonable doubt”. See also Beery v. Chicago, etc., R. R. Co., 73 Wis. 197, 200, 40 N.W. 687;Ward v. Chicago, etc., R. R. Co., 102 Wis. 215, 219, 78 N.W. 442;Jones v. Monson, 137 Wis. 478, 119 N.W. 179, 129 Am.St.Rep. 1082;Sufferling v. Heyl & Patterson, 139 Wis. 510, 518, 121 N.W. 251. Although it would be error to instruct in an action to recover on an insurance policy that in order to find arson the proof must be beyond a reasonable doubt, or words which amount to saying that (Oberleitner v. Security Ins. Co., 199 Wis. 220, 223, 225 N.W. 735;Washington Union Ins. Co. v. Wilson, 7 Wis. 169;Blaeser v. Milwaukee Mechanics' Mutual Ins. Co., 37 Wis. 31, 39, 19 Am.Rep. 747), we said in the Oberleitner case, supra [199 Wis. 220, 225 N.W. 737], that “In such a situation the proof need not be beyond a reasonable doubt, but only such as to convince by a clear preponderance of the evidence.” That is in accord with the rule which is well established in this state,-notwithstanding decisions to the contrary elsewhere,-that, “In civil actions, where fraud, crime, criminal conduct or conspiracy is alleged, the burden rests upon him who so charges, to establish the proof of such allegations by clear and satisfactory evidence, Max L. Bloom Company v. United States C. Company, 191 Wis. 524, 210 N.W. 689;Muska v. Apel, 203 Wis. 389, 232 N.W. 593; or by the clear and satisfactory evidence to a reasonable certainty. Lange v. Heckel, 171 Wis. 59, 175 N.W. 788, or by clear, satisfactory and convincing evidence. Parker v. Hull, 71 Wis. 368, 37 N.W. 351, 5 Am.St.Rep. 224;Milonczyk v. Farmers' Mutual Fire Insurance Company, 200 Wis. 255, 227 N.W. 873.” Estate of Hatten, 233 Wis. 199, 208, 288 N.W. 278, 282. See also Poertner v. Poertner, 66 Wis. 644, 29 N.W. 386;Klipstein v. Raschein, 117 Wis. 248,...