Lindner v. St. Paul Fire & Marine Insurance , 1896 Wisc. LEXIS 92 ( 1896 )

PiNNey, J.

1. It is contended that it was error to allow the defendant’s adjuster, McClure, on cross-examination, to testify, in answer to a question as to what was said to him about $1,800 when he had an interview at his office with the plaintiff and another in relation to the loss, to the effect that they called on him to talk about getting a settlement; that they were still endeavoring the next day to settle; that he had been out to the premises in the meantime,— and, without answering the question, he volunteered the statement that he “ had not then, or at any time, refused to settle ; that he stated to Killilea that he had made two offers conditionally.” If the statement thus volunteered by the defendant’s witness was improper, the defendant’s counsel should have asked to have it stricken out. The answer was not responsive to the question, and the exception does not raise any point available to the defendant as a ground of error.

2. The plaintiff, in making out his case, produced evidence to the effect that about a week after the fire he, with the witness, visited McClure, the adjuster, for the third time in respect to the loss, McClure having said at the second visit that he would not give more than $1,400; that at the third visit McClure said “ he would not give anything, that there wasn’t any liability under the policy, that the man burned it down.” McClure, on the part of the defendant, testified that at none of the interviews, nor at any time, did he say that the company would not pay anything, nor did he deny liability on the part of the company, but he did chai’ge the plaintiff with neglect in allowing the first fire to spread and cause the second. In rebuttal the plaintiff offered and read in evidence, against the defendant’s objection, the portions of the answer withdrawn at the commencement of the trial, charging the plaintiff with incendiarism, as stated. We think there was no error in this. The question to which the evidence was directed was whether, by denying liability, the. necessity for making and delivering proofs o’f loss had been waived. The claim in the answer, as applied to this question, was in the nature of an admission or declaration of facts tending to show a waiver, and was admissible as the defendant’s claim of defense to the action, and to rebut the evidence of the defendant and corroborate the evidence of the plaintiff’s witness. The pleading of a party in the same or any other action is, in general, competent evidence against him as to any matter of fact material to the action on trial. Folger v. Boyinton, 67 Wis. 447. It became necessary to offer these portions of the answer in evidence for the reason that they had ceased to be any part of the existing answer, of which notice could be taken without being thus put in evidence. The defendant could not avoid their effect by withdrawing them from its answer. Fogg v. Edwards, 20 Hun, 90; Strong v. Dwight, 11 Abb. Pr. (N. S.), 319. There is nothing in the case of Leavitt v. Cutler, 31 Wis. 52, to the contrary. That case related only to the use in evidence of charges dishonestly made in a previous answer, in aggravation of damages. The fact that the answer is not verified only renders the declaration less solemn and cogent, but it is still competent to show the claim of defense originally set up. Presumptively, the answer was authorized by the defendant, but it might show the circumstances, and that the allegations were inserted without proper authority.

3. It is said that the court erred in refusing to take the verdict of the jury separately on the value of the several groups of items insured for separate amounts under the policy. There were six groups of items of property destroyed by fire, aggregating about $1,285. It appears that the aggregate amount of insurance on this property was $1,050, and the jury allowed for its loss but $950. It is argued that the jury may have allowed, on some parts of this property insured in groups, a greater sum than it was insured for. No attempt was made to point out that in fact the defendant had been prejudiced by the form of submission, and there is no presumption that it was. Error must be shown affirmatively. It will not be presume'd. The form of a special verdict is largely in the discretion of the trial court, and that discretion will not be interfered with, provided the issuable facts in the case are covered. Pratt v. Peck, 65 Wis. 463, 472.

4. It is assigned as error that the court refused to direct the jury as to the valuation to be put upon the personal property destroyed in the barn, and refused a specific instruction to the effect that $132 must be deducted from an item of $200 for the horse and wagon that were saved. The court did instruct the jury that they would bear in mind that the horse and wagon were saved, and that they would not take them into consideration, and that the questions as to the value of the personal property destroyed by the fire they would determine from a fair preponderance of the evidence in the case. The question of the value of personal property is largely a matter of opinion, and a fair question for the jury. "What the jury allowed for the other items of the entire $200, or what sum they deducted for the horse and wagon, does not appear. We think that the defendant has no ground of complaint. The presumption is that the jury found according to the evidence. The point is made that there was no evidence to show that the hay and grain, valued at $50, were destroyed. There was evidence that they were in the barn, and that the barn was totally destroyed by fire. The request of the defendant that the jury be instructed to deduct $19.25 from the item for flour, on the ground that there were only nine barrels of flour, was not well founded; for the plaintiff, on cross-examination, testified that there were seventeen barrels of flour,— eight of one kind, and nine of another, — giving the value per barrel of each kind.

5. It is insisted that the court erred in instructing the jury that the buildings upon the plaintiff’s property insured by the policy- were entirely destroyed by fire, but the argument on this point is confined to the matter of the dwelling house, and rests upon the testimony of McClure, the adjuster, to the effect that “ the foundation and cellar of the dwelling house were entire, and a great portion of the sills stood upon the top of the stonework;” and another witness testified that “ there was a carpet still remaining on the floor of the room where the feather bed was stored, and such carpet was spoiled with water, but not destroyed.” It is argued that a portion of the house, namely, the stone foundation, the foundation sills, and the first floor, were practically intact and uninjured, and had not been reduced to a broken and shapeless mass,' but still retained their distinct character, uninjured, as parts of the building, and that therefore the question of total destruction was for the jury. This evidence will not prevent the case from being regarded as one of total destruction of the building. It would not be expected that the foundation and cellar would be utterly destroyed. McClure does not say that the foundation was not injured; and only portions of certain combustible parts of the building remained. As was said in Seyk v. Millers’ Nat. Ins. Co. 74 Wis. 72: “It cannot be doubted that the identity and specific character of the insured buildings were destroyed by the fire, although, there was not an absolute extinction of all the parts thereof. This was an entire destruction of the buildings, within the meaning of the statute.” The material facts were undisputed, and the court might properly give, as it did, an absolute instruction on the subject. Wood, Fire Ins. § 107; Harriman v. Queen Ins. Co. 49 Wis. 71. Another of defendant’s witnesses testified that after the fire he made a measurement of the size of the buildings, and that' he was able to determine their ground size from what was left; that he found a part of the sills and some posts, and where the sills were gone he had no trouble in following their outline. It is clear that each of the buildings had lost its identity as such, so that after the fire neither of them existed as a building. The fact that some of the materials remained, in a more or less injured condition, will not prevent the loss from being total. 2 Majq Ins. § 421a. We think that the absolute instruction of the court was warranted by the evidence. There was really no dispute as to the facts. It follows, therefore, that the court properly iucreased the amount found in answer to the seventh question to $975, the full amount of the insured value, and in like manner reduced the amount found in answer to the third question to $100, the insured value of the buildings therein referred to.

6. It is urged that the plaintiff’s ownership of the insured property >vas put in issue by the answer, and was not proved, and that the court erred in answering the first question, and in not submitting the question of the plaintiff’s ownership to the jury. The evidence is undisputed that at the time of the fire the plaintiff was in possession of all the insured property, and it is described in the policy as his property, as “his one-story building,” etc.; “his frame barn,” etc.; “ his one-story frame dwelling occupied as a store-room,” etc.; and the like, as to all the buildings. This evidence was sufficient, prima facie, to entitle him to recover, and to put the burden of proof on the defendant (Nichols v. Fayette Mut. F. Ins. Co. 1 Allen, 63); but it produced no evidence on the subject.

There are no other questions requiring consideration. There does not appear to be any reversible error in the record.

By the Court.— The judgment of the superior court is affirmed.