. The following opinion was filed February 27, 1900:
Dod&e, J.
1. The first and fundamental question in this case is whether the defendant assignee was guilty of a breach of his official duty in refraining from effort to secure insurance on the building and stock of the manufacturing plant in his possession. Certainly no less degree of care and diligence can be permitted to an assignee than that which is imposed upon the bailee for hire or agent, namely, that of ordinary diligence,— such diligence and care as are exercised by ordinarily prudent persons under like circumstances, — • [24]*24and the utmost good faith, and to that duty he should be strictly held. It has always been the policy of courts to protect those who, by force of the law, or without their consent, are represented by others in the care of their property. In the case of an assignment the body of creditors are the ones ultimately interested in the preservation and productiveness of the property; upon them falls the loss, and to them results the benefit, of the assignee’s management. They cannot direct specific acts, nor, in the main, can they control that management. Hence the duty of the courts to hold the assignee to strict performance, first, of all orders which the court may make as to his conduct, and, secondly, where the court is silent, to the full measure of diligence and fidelity above suggested. Burrill, Assignments (6th ed.), § 410; Smith, Receiverships, § 109; Litchfield v. White, 7 N. Y. 438; In re Dean, 86 N. Y. 398, 400; In re Cornell, 110 N. Y. 351, 357. In this case it is fully proved, and, if not proved, the fact is so well within common knowledge as to justify judióial notice thereof, that ordinarily prudent men, having in possession a large manufacturing establishment such as this was shown to be, keep the same insured against loss by fire to an amount well approaching the real value. It is also proved that assignees and receivers do not customarily pursue a different course, in this respect, from others. By one witness it is said that the custom for assignees to insure is substantially universal; by another, that nine out of ten of them do insure; and by all the witnesses that the custom is general. We cannot doubt, therefore, that it is proved to have been the duty of the defendant assignee to have exercised such diligence to procure insurance upon this plant as would have been exercised by an ordinarily prudent and diligent man. In this duty he absolutely failed, confessedly. He made not the slightest effort to secure insurance, either by the assignment of existing policies or by the procuring of new ones; and [25]*25this, too, in despite of express advice and direction from his -counsel. ITe was, then, guilty of negligence in the performance of his duties as assignee, ancl no reason is apparent why both he and the sureties upon his official bond should not be liable for any damages proved to have resulted therefrom.
As we approach the question of damages, some difficulty is met. It is proved that the property destroyed was worth about $37,000; that the usual amount of insurance upon such property would have been more than enough to satisfy the •claims of all the creditors, which aggregate $22,385.89; and that, by reason of the absence of such insurance, the creditors are damnified to that extent. On one hand, it is •contended that this showing is sufficient, prima facie, to entitle them to recover, and that such recovery can be' defeated only by proof that due diligence on the part of the .assignee would have been ineffective in procuring either .any insurance or some part of the amount necessary for the protection of the creditors; and that the burden of proving this situation rests upon the defendant, who seeks to diminish the apparently natural results of his own negligence. On the other hand, it is contended that the plaintiff must •establish that the creditors have actually suffered damage by reason of the negligence of the assignee, which they would not have suffered had he not been so negligent. It is urged that it cannot be said that loss to a creditor is caused by an ■omission on the part of the assignee of any effort to insure, unless such effort probably would have been successful; or, if successful only in part, the amount of such injury cannot be declared unless the amount of insurance obtainable is established. Unless those facts appear, it is said the injury may as well have resulted from the most diligent conduct as from the most negligent, and the negligence is not shown to be the cause of the injury,— citing Duncan v. W. U. Tel. Co. 87 Wis. 173; Hartstein v. W. U. Tel. Co. 89 Wis. 531.
[26]*26In this case, as we read the record, there is no finding-upon this subject, for the reason that the court adopted a wrong legal standard for the diligence required of the as-signee. Maldaner v. Smith, 102 Wis. 80. He held that the-duty to insure existed only in case insurance could be readily obtained, and then proceeds to find as a fact that, although the assignee had exercised due diligence, he could neither have secured assignment to him of existing policies-of insurance nor the issue of others prior to the fire. We think the diligence mentioned in this finding-must be understood in the light of the rule of-law enunciated by the court. So understood, the court has only found that he could not- “ readily ” have insured. This construction of the finding is made the more certain by the preceding one, where the-court finds that it is not established whether any, and, if any, how much, insurance could have been obtained by forwarding applications to the home offices of the insurance companies. Certainly, when local agents have not authority to pass on a- risk, or to insure it without submission to-their superiors, it is not an effort in excess of ordinary diligence to request such submission.
Being without finding as to whether or not ordinary diligence would have protected plaintiff from loss in whole or-ín part, we must consider the evidence without the aid of the-trial court’s decision thereon. On the question of the burden of proof — of the extent to which the injured plaintiff must-go, after proving his injury and the defendant’s negligence, to-establish that the negligence caused the injury prima faeie in order to throw on the negligent defendant the burden of proving that due diligence would have been ineffectual to-prevent the loss in whole or in part — there is much authority in the cases of agents, sheriffs, and others whose standard of duty is the same as that owed by an assignee, namely, the diligence of an ordinarily prudent man. Some of the textbooks and adjudications are the following: Paley, Agency [27]*27(3d Am. ed.), 20; Story, Agency, §§ 192, 222, 236, 237; Ewell’s Evans, Agency, *234; Mechem, Agency, § 518; 2 Sedgwick, Damages, §§ 545, 811, 813, 817; Sutherland, Damages, § 489-et seg.; Wilson v. Wilson, 26 Pa. St. 394; Folsom v. Mussey, 10 Me. 297; Storer v. Eaton, 50 Me. 219; Strong v. High (La.), 38 Am. Dec. 195; Chenowith v. Dickinson, 8 B. Mon. 156; Beardsley v. Davis, 52 Barb. 159; First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320; S. C. 89 N. Y. 412; Talcott v. Cowdry, 39 N. Y. Supp. 1076; Commercial Bank v. Red River Val. Nat. Bank (N. D.), 79 N. W. Rep. 859, 866; Heater v. Pearce (Neb.), 81 N. W. Rep. 615; Backus v. Ames (Minn.), 81 N. W. Rep. 766.
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. The following opinion was filed February 27, 1900:
Dod&e, J.
1. The first and fundamental question in this case is whether the defendant assignee was guilty of a breach of his official duty in refraining from effort to secure insurance on the building and stock of the manufacturing plant in his possession. Certainly no less degree of care and diligence can be permitted to an assignee than that which is imposed upon the bailee for hire or agent, namely, that of ordinary diligence,— such diligence and care as are exercised by ordinarily prudent persons under like circumstances, — • [24]*24and the utmost good faith, and to that duty he should be strictly held. It has always been the policy of courts to protect those who, by force of the law, or without their consent, are represented by others in the care of their property. In the case of an assignment the body of creditors are the ones ultimately interested in the preservation and productiveness of the property; upon them falls the loss, and to them results the benefit, of the assignee’s management. They cannot direct specific acts, nor, in the main, can they control that management. Hence the duty of the courts to hold the assignee to strict performance, first, of all orders which the court may make as to his conduct, and, secondly, where the court is silent, to the full measure of diligence and fidelity above suggested. Burrill, Assignments (6th ed.), § 410; Smith, Receiverships, § 109; Litchfield v. White, 7 N. Y. 438; In re Dean, 86 N. Y. 398, 400; In re Cornell, 110 N. Y. 351, 357. In this case it is fully proved, and, if not proved, the fact is so well within common knowledge as to justify judióial notice thereof, that ordinarily prudent men, having in possession a large manufacturing establishment such as this was shown to be, keep the same insured against loss by fire to an amount well approaching the real value. It is also proved that assignees and receivers do not customarily pursue a different course, in this respect, from others. By one witness it is said that the custom for assignees to insure is substantially universal; by another, that nine out of ten of them do insure; and by all the witnesses that the custom is general. We cannot doubt, therefore, that it is proved to have been the duty of the defendant assignee to have exercised such diligence to procure insurance upon this plant as would have been exercised by an ordinarily prudent and diligent man. In this duty he absolutely failed, confessedly. He made not the slightest effort to secure insurance, either by the assignment of existing policies or by the procuring of new ones; and [25]*25this, too, in despite of express advice and direction from his -counsel. ITe was, then, guilty of negligence in the performance of his duties as assignee, ancl no reason is apparent why both he and the sureties upon his official bond should not be liable for any damages proved to have resulted therefrom.
As we approach the question of damages, some difficulty is met. It is proved that the property destroyed was worth about $37,000; that the usual amount of insurance upon such property would have been more than enough to satisfy the •claims of all the creditors, which aggregate $22,385.89; and that, by reason of the absence of such insurance, the creditors are damnified to that extent. On one hand, it is •contended that this showing is sufficient, prima facie, to entitle them to recover, and that such recovery can be' defeated only by proof that due diligence on the part of the .assignee would have been ineffective in procuring either .any insurance or some part of the amount necessary for the protection of the creditors; and that the burden of proving this situation rests upon the defendant, who seeks to diminish the apparently natural results of his own negligence. On the other hand, it is contended that the plaintiff must •establish that the creditors have actually suffered damage by reason of the negligence of the assignee, which they would not have suffered had he not been so negligent. It is urged that it cannot be said that loss to a creditor is caused by an ■omission on the part of the assignee of any effort to insure, unless such effort probably would have been successful; or, if successful only in part, the amount of such injury cannot be declared unless the amount of insurance obtainable is established. Unless those facts appear, it is said the injury may as well have resulted from the most diligent conduct as from the most negligent, and the negligence is not shown to be the cause of the injury,— citing Duncan v. W. U. Tel. Co. 87 Wis. 173; Hartstein v. W. U. Tel. Co. 89 Wis. 531.
[26]*26In this case, as we read the record, there is no finding-upon this subject, for the reason that the court adopted a wrong legal standard for the diligence required of the as-signee. Maldaner v. Smith, 102 Wis. 80. He held that the-duty to insure existed only in case insurance could be readily obtained, and then proceeds to find as a fact that, although the assignee had exercised due diligence, he could neither have secured assignment to him of existing policies-of insurance nor the issue of others prior to the fire. We think the diligence mentioned in this finding-must be understood in the light of the rule of-law enunciated by the court. So understood, the court has only found that he could not- “ readily ” have insured. This construction of the finding is made the more certain by the preceding one, where the-court finds that it is not established whether any, and, if any, how much, insurance could have been obtained by forwarding applications to the home offices of the insurance companies. Certainly, when local agents have not authority to pass on a- risk, or to insure it without submission to-their superiors, it is not an effort in excess of ordinary diligence to request such submission.
Being without finding as to whether or not ordinary diligence would have protected plaintiff from loss in whole or-ín part, we must consider the evidence without the aid of the-trial court’s decision thereon. On the question of the burden of proof — of the extent to which the injured plaintiff must-go, after proving his injury and the defendant’s negligence, to-establish that the negligence caused the injury prima faeie in order to throw on the negligent defendant the burden of proving that due diligence would have been ineffectual to-prevent the loss in whole or in part — there is much authority in the cases of agents, sheriffs, and others whose standard of duty is the same as that owed by an assignee, namely, the diligence of an ordinarily prudent man. Some of the textbooks and adjudications are the following: Paley, Agency [27]*27(3d Am. ed.), 20; Story, Agency, §§ 192, 222, 236, 237; Ewell’s Evans, Agency, *234; Mechem, Agency, § 518; 2 Sedgwick, Damages, §§ 545, 811, 813, 817; Sutherland, Damages, § 489-et seg.; Wilson v. Wilson, 26 Pa. St. 394; Folsom v. Mussey, 10 Me. 297; Storer v. Eaton, 50 Me. 219; Strong v. High (La.), 38 Am. Dec. 195; Chenowith v. Dickinson, 8 B. Mon. 156; Beardsley v. Davis, 52 Barb. 159; First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320; S. C. 89 N. Y. 412; Talcott v. Cowdry, 39 N. Y. Supp. 1076; Commercial Bank v. Red River Val. Nat. Bank (N. D.), 79 N. W. Rep. 859, 866; Heater v. Pearce (Neb.), 81 N. W. Rep. 615; Backus v. Ames (Minn.), 81 N. W. Rep. 766.
Under the most liberal of the rules justified by these authorities as to the quantum of proof necessary to connect defendant’s negligence with plaintiff’s loss in the first instance, we are satisfied that in the present case enough was proved by the plaintiff to establish a prima facie liability of the defendants for the amount claimed. The insurability of the property, so far as the physical risk went, was established beyond controversy; also the practical universality of' experience of assignees to obtain insurance to eighty per cent, or more of the value, of property in their hands, which would have exceeded plaintiff’s claims. Further, those circumstances were shown to exist which the insurance experts, testified were considered as reducing to the utmost the moral hazard attending all property m custodia legis, and facilitating insurance thereof, namely, the productiveness of the-property, the absence of protracted or antagonistic litigation, and its continued occupation by the old owners with intent, to operate, and expectation to save, the plant after satisfying the creditors, and to continue business. It was also' proved by a preponderance of the evidence that some insurance could, within four or five days from date of application, have been obtained from at least three of the companies, holding policies at the time of the failure; also that, if local [28]*28agents were unwilling to assume the authority, a decision ■could have been had from the general offices of the insur.ance companies within four or five days. To summarize: The property was of a kind usually insured, and that, too, in the hands of an assignee. Nothing in this assignment made insurance more improbable than usual. The time was ■ample, and the value justified insurance more than sufficient to have covered plaintiff’s claims. In all reasonable probability the efforts of an ordinarily diligent man would have been effectual to procure insurance exceeding $23,000. That rsuffices to establish plaintiff’s case under the authorities above cited. Such prima faeie case having been established, the burden of proof was on the defendants to establish, either ■that the assignee’s negligence was not injurious at all, or, if ■at all, for what part of the loss prima faoie resulting therefrom ; either that by due diligence he could not have obtained any insurance, or not enough to protect plaintiff from the whole of the loss.
We incline to the view that the present record does not disclose evidence to overcome th & prima fade liability established, but, as has already been pointed out, we consider that there is no finding on the question, and we apprehend that injustice might be done in the attempt to finally decide it here. We think it safer, therefore, that the circuit court, in the light of the foregoing statement of the diligence required of the assignee, and in view of the burden of proof resting upon the defendant, should consider and decide, upon the competent evidence already received and such additional evidence as may be offered upon the single question, whether the assignee’s negligence in making no efforts to ■obtain any insurance caused less injury to the plaintiff than the amount of the unpaid claims, and, if so, how much less. Under all of the authorities, plaintiff is entitled to recover at least nominal damages. Heater v. Pearce (Neb.), 81 N. W. Rep. 615.
[29]*292. Certain errors are assigned on the admission of evidence in response to hypothetical questions. While such error would not, under the rules laid down by this court, work a reversal, yet as the admissibility and competency of the evidence so admitted, and very possibly of further like evidence to be offered, is important in the consideration of' the single question to be decided by the circuit court, those-assignments of error should receive attention. The objection raised was to questions of which the two following are typical: A fire insurance agent, produced by the defendant, was asked, “ Had Mr. Winterhalter brought you these three policies at any time before the fire, to get your consent to-the transfer to him of this insurance, would you have given it ? ” Question to the secretary of another insurance company: “Would your company, at that time, have written insurance on property in the hands of an assignee ? ” Both questions, and many others substantially similar to other-witnesses, were answered in the negative. These questions fall -squarely within the rule laid down in Woodworth v. Mills, 61 Wis. 44, 54, and Commeroicd Bank v. Firemen's Ins. Co. 87 Wis. 297, 303, where they were condemned as calling-merely for the opinion of the witness as to what his conduct would have been under circumstances which did not. exist,— a field altogether too vague for opinion evidence. The probable conduct of a particular individual or corporation is not a subject of expert evidence; it is a subject for-the jury or court, in trying the facts, to reach a conclusion on from the general custom, if any, of persons in that trade,, profession, or business under like circumstances. The opinion of one as to what he would have done, formed after the event, and after he has discovered whether the act would have proved beneficial or injurious, is too unsafe and unreliable to be received as evidence. The responses to questions like those quoted above, where they were objected to,. [30]*30■should not have been received, and should not -be allowed to have weight in the further consideration of the case.
3. It is contended that appellant cannot maintain this ■action on the assignee’s bond until the court having supervision of the assignment proceedings shall have settled a final account and closed the proceedings. The general question is controlled by sec. 1695, Stats. 1898, which provides: “ Such bond shall, immediately after its execution, together •with a full and true copy of such assignment, be filed by the officer taking the same in the office of the clerk of the circuit court to whom it is executed; and the taking and filing of said bond by said court commissioner or county judge shall be deemed a sufficient approval thereof, and all bonds ■so taken and filed are hereby declared to be sufficiently approved. Such bond and copy of assignment shall be kept by such clerk in his office, subject at all times to the inspection of all parties interested; and any creditor of the assignor may maintain an action thereon in the name of the obligee at anytime for condition broken, and any judgment rendered thereon shall be held and collected for the benefit of the respective creditors of the assignor according to law and the terms and conditions of such assignment. The court may, from time to time, require the assignee to furnish a new or additional bond.” This statute is very comprehensive in its terms, but in the present case it is not necessary to decide whether, at every stage of the proceedings, individual creditors may maintain an action against an assignee for any act believed to be in derogation of his duty, although the same may well become an item of charge in his general account. Here we have the assignment entirely closed up, the property turned over by the assignee, and he for some years functus officio except for the single act of making the creditors good for the injury imposed on them by his negligence. One essential element of their damage could not [31]*31be known until the result of the receiver’s disposition of the property was ascertained. That being done, all the elements of their case are capable of trial and decision in an action on the bond. Their cause of action is complete. That being so, if it were conceded that the formal settlement of the assignee’s account were a necessary preliminary to the commencement of this action, the absence of such step would be matter merely in abatement. It would go not to defeat the cause, but to postpone the commencement of the action, and must, therefore, be raised by plea in abatement. The answer on the merits waived it. Lombard v. McMillan, 95 Wis. 627, 635.
By the Gourt.— Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.
On a motion for a rehearing counsel for the respondent contended, inter alia, that the action is not maintainable. The objection that there had been no formal settlement of the assignee’s account was raised by the demurrer. Such objection could be as well raised by demurrer as by plea in abatement. Lombard v. McMillan, 95 Wis. 627-635, and authorities cited; Bigelow v. Washburn, 98 Wis. 556; Webber v. Ward, 94 Wis. 605; Hooker v. Brandon, 75 Wis. 8-12. The complaint alleged that, although the assignee turned over certain assets to the receiver in pursuance of the order of the court and received his fees and disbursements up to that date, “said assignee had never been discharged nor have his accounts and doings ever been finally allowed or confirmed by the said court.” The respondent demurred to .said complaint on the ground (1) that it did not state facts .sufficient to constitute a cause of action; (2) that said plaintiff had an adequate remedy at law; (3) that said plaintiff had not the legal capacity to maintain the action; and (4) that said plaintiff had an adequate and exclusive remedy in the [32]*32voluntary assignment proceedings set forth in the complaint. The demurrer was overruled and respondent excepted. This-raised the question whether the action on the bond could be maintained, the assignee never having been discharged.