Lyon, J.
We have had considerable difficulty in obtaining a correct understanding, as well of the facts of this ease, as of the points upon which the defendant seeks a reversal of the judgment of the circuit court. This difficulty arises from the circumstances, that the learned counsel for the defendant, who usually prepares his cases and arguments with great care, has been disabled from so doing in the present cause by' severe and protracted indisposition. The testimony contained in the bill of exceptions is very voluminous, consisting of over 430 manuscript pages; and the comparatively small portion thereof printed in the abstract of the case does not seem to have been aptly selected to show the full tendency and effect of the testimony on behalf of the plaintiff. The cause was not argued at the bar, and, for the reason just stated, the counsel for the defendant, with the consent of the opposing counsel, was excused from filing a printed argument or brief, and we have before us only his random brief, which was evidently hastily prepared for use in the circuit court. Of course, these obser-, vations imply no censure, but they are made solely for the purpose of explanation, should we fail to comprehened fully and correctly, any material fact or question involved in the issue.
It will be convenient to examine the points which seem to .present themselves for consideration, in the order in which they are stated in the answer.
1. It will be remembered that a provision contained in the policy of insurance required that, in case a loss should occur, with his proofs of such loss the plaintiff should produce a certificate of certain facts and opinions, “ under the seal of a magistrate, notary public or a commissioner of deeds, nearest the place of the fire and not concerned in the loss or related [530]*530to tbe assured.”' The plaintiff accompanied bis proofs of loss with the certificate, in the prescribed form, of one Stillman, then a justice of tbe peace of Lima, and the nearest officer designated in the policy, to' the place of the fire, except one E. Hull, who was also a justice of the peace. The proofs were objected to by the general manager of the defendant company for the reason that the certificate was not made by the magistrate, notary or commissioner nearest the place of the fire, that is, because it was not made by justice Hull. It seems that the plaintiff had applied to the latter justice for the certificate; but he refused to give it.
The learned circuit judge submitted to the jury the question of fact, whether there had been a substantial compliance with this condition of the policy, and instructed them that a substantial compliance therewith was sufficient. He refused to give an instruction to the effect, that if 'Mr. Hull was the magistrate nearest the place of the fire, not concerned in the loss or related to the assured, his certificate was indispensable to the plaintiff’s right of action.
The evidence shows conclusively that the fire from' the plaintiff’s burning building communicated directly to, and burned, the building of Mr. Hull occupied by him as a store and residence, and also burned a portion of his goods therein ; that he had no insurance on the property thus destroyed ; and that he made a complaint to a magistrate, against the plaintiff, charging him with the crime of setting the fire. If the plaintiff willfully set the fire which destroyed his property, the defendant company is not liable for his loss, but he is liable to Mr. Hull for the loss of the latter caused by tbe same fire. Had Mr. Hull made the certificate required by the policy, it would have been strong, almost conclusive, evidence against his right to recover for his loss in an action therefor against the plaintiff. Hence he had an interest in withholding the certificate, and in the establishing of the fact that the plaintiff willfully set the fire.
[531]*531"We do not understand that the term “ concerned in the loss ” as employed in the policy means merely a pecuniary interest in the money which may be obtained from the insurance company on account of a loss, but that it is inserted in the policy to secure an impartial arbiter between the company and the assured, — one who will neither mate nor lose, directly or indirectly, by the determination- of the rights and obligations of. the parties in respect to the loss, but who stands indifferent between them. We think, therefore, that justice Hull was “ concerned in the loss,” and .that justice Stillman was. the .proper person to make the certificate ; and had the learned judge so instructed the jury, it would hot have been error.. The instructions given were more favorable to the defendant than it had any right to demand, and it cannot be heard to complain of them.
2. On the subject of the value of the insured property at the time the policy was • issued, the testimony is very conflicting. There certainly is testimony tending to show, and from which the: jury might have found, that the property was th.en of the value stated by the plaintiff in his application for insurance. The-judge at first instructed- the jury that if the plaintiff overestimated such, value, honestly, and in consequence of a mere error of judgment, it would not avoid the policy. But he subsequently modified his charge in this respect, and instructed them that unless 'the property was actually worth the sum stated in the application, the policy is void, and that its validity does not depend upon the plaintiff’s knowledge that he had made an overestimate of - the value. Under the modified instruction the jury must have found that the value -of the property was not overestimated by the plaintiff. This- disposes of the point. •
3. The testimony also tends to show that the plaintiff’s loss on each class of insured property equalled the insurance thereon, and the. jury were instructed that if he recovered in the action, his recovery must be limited to his actual loss. This was manifestly correct.
[532]*5324. The question as to whether the plaintiff set the fire was litigated on the trial, and was fairly submitted to the jury. On this issue of fact the verdict was for the plaintiff, and we cannot disturb it.
5. As to the proximity of other buildings not mentioned in the application. There is considerable testimony relating to a building on an adjoining lot in the rear of the insured store, not so mentioned, but we find no statement of the distance between the two buildings. If such distance was less than 100 feet, the burden was upon the defendant to prove the fact. Failing to do so, the presumption is that the distance between the two buildings was more than 100 feet.
There was, however, a building on the opposite side of the street, within less than 100 feet of the insured building ; but it is very evident from the testimony that the agent of the defendant who wrote and received the application and delivered the policy, knew the fact. He went upon the premises and examined them before taking the risk, and he does not claim to have been ignorant of the existence and location of the building across the street. Furthermore, there is no testimony tending to show that the plaintiff fraudulently or intentionally omitted to mention such building in his application. Under these circumstances, the failure thus to mention it does not vitiate the policy. Miner v. Phœnix Ins. Co., 27 Wis., 693, and cases cited.
Testimony was introduced on the trial tending to show that a strip of ground about four feet wide, under the side of the tin-fehop next to Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Lyon, J.
We have had considerable difficulty in obtaining a correct understanding, as well of the facts of this ease, as of the points upon which the defendant seeks a reversal of the judgment of the circuit court. This difficulty arises from the circumstances, that the learned counsel for the defendant, who usually prepares his cases and arguments with great care, has been disabled from so doing in the present cause by' severe and protracted indisposition. The testimony contained in the bill of exceptions is very voluminous, consisting of over 430 manuscript pages; and the comparatively small portion thereof printed in the abstract of the case does not seem to have been aptly selected to show the full tendency and effect of the testimony on behalf of the plaintiff. The cause was not argued at the bar, and, for the reason just stated, the counsel for the defendant, with the consent of the opposing counsel, was excused from filing a printed argument or brief, and we have before us only his random brief, which was evidently hastily prepared for use in the circuit court. Of course, these obser-, vations imply no censure, but they are made solely for the purpose of explanation, should we fail to comprehened fully and correctly, any material fact or question involved in the issue.
It will be convenient to examine the points which seem to .present themselves for consideration, in the order in which they are stated in the answer.
1. It will be remembered that a provision contained in the policy of insurance required that, in case a loss should occur, with his proofs of such loss the plaintiff should produce a certificate of certain facts and opinions, “ under the seal of a magistrate, notary public or a commissioner of deeds, nearest the place of the fire and not concerned in the loss or related [530]*530to tbe assured.”' The plaintiff accompanied bis proofs of loss with the certificate, in the prescribed form, of one Stillman, then a justice of tbe peace of Lima, and the nearest officer designated in the policy, to' the place of the fire, except one E. Hull, who was also a justice of the peace. The proofs were objected to by the general manager of the defendant company for the reason that the certificate was not made by the magistrate, notary or commissioner nearest the place of the fire, that is, because it was not made by justice Hull. It seems that the plaintiff had applied to the latter justice for the certificate; but he refused to give it.
The learned circuit judge submitted to the jury the question of fact, whether there had been a substantial compliance with this condition of the policy, and instructed them that a substantial compliance therewith was sufficient. He refused to give an instruction to the effect, that if 'Mr. Hull was the magistrate nearest the place of the fire, not concerned in the loss or related to the assured, his certificate was indispensable to the plaintiff’s right of action.
The evidence shows conclusively that the fire from' the plaintiff’s burning building communicated directly to, and burned, the building of Mr. Hull occupied by him as a store and residence, and also burned a portion of his goods therein ; that he had no insurance on the property thus destroyed ; and that he made a complaint to a magistrate, against the plaintiff, charging him with the crime of setting the fire. If the plaintiff willfully set the fire which destroyed his property, the defendant company is not liable for his loss, but he is liable to Mr. Hull for the loss of the latter caused by tbe same fire. Had Mr. Hull made the certificate required by the policy, it would have been strong, almost conclusive, evidence against his right to recover for his loss in an action therefor against the plaintiff. Hence he had an interest in withholding the certificate, and in the establishing of the fact that the plaintiff willfully set the fire.
[531]*531"We do not understand that the term “ concerned in the loss ” as employed in the policy means merely a pecuniary interest in the money which may be obtained from the insurance company on account of a loss, but that it is inserted in the policy to secure an impartial arbiter between the company and the assured, — one who will neither mate nor lose, directly or indirectly, by the determination- of the rights and obligations of. the parties in respect to the loss, but who stands indifferent between them. We think, therefore, that justice Hull was “ concerned in the loss,” and .that justice Stillman was. the .proper person to make the certificate ; and had the learned judge so instructed the jury, it would hot have been error.. The instructions given were more favorable to the defendant than it had any right to demand, and it cannot be heard to complain of them.
2. On the subject of the value of the insured property at the time the policy was • issued, the testimony is very conflicting. There certainly is testimony tending to show, and from which the: jury might have found, that the property was th.en of the value stated by the plaintiff in his application for insurance. The-judge at first instructed- the jury that if the plaintiff overestimated such, value, honestly, and in consequence of a mere error of judgment, it would not avoid the policy. But he subsequently modified his charge in this respect, and instructed them that unless 'the property was actually worth the sum stated in the application, the policy is void, and that its validity does not depend upon the plaintiff’s knowledge that he had made an overestimate of - the value. Under the modified instruction the jury must have found that the value -of the property was not overestimated by the plaintiff. This- disposes of the point. •
3. The testimony also tends to show that the plaintiff’s loss on each class of insured property equalled the insurance thereon, and the. jury were instructed that if he recovered in the action, his recovery must be limited to his actual loss. This was manifestly correct.
[532]*5324. The question as to whether the plaintiff set the fire was litigated on the trial, and was fairly submitted to the jury. On this issue of fact the verdict was for the plaintiff, and we cannot disturb it.
5. As to the proximity of other buildings not mentioned in the application. There is considerable testimony relating to a building on an adjoining lot in the rear of the insured store, not so mentioned, but we find no statement of the distance between the two buildings. If such distance was less than 100 feet, the burden was upon the defendant to prove the fact. Failing to do so, the presumption is that the distance between the two buildings was more than 100 feet.
There was, however, a building on the opposite side of the street, within less than 100 feet of the insured building ; but it is very evident from the testimony that the agent of the defendant who wrote and received the application and delivered the policy, knew the fact. He went upon the premises and examined them before taking the risk, and he does not claim to have been ignorant of the existence and location of the building across the street. Furthermore, there is no testimony tending to show that the plaintiff fraudulently or intentionally omitted to mention such building in his application. Under these circumstances, the failure thus to mention it does not vitiate the policy. Miner v. Phœnix Ins. Co., 27 Wis., 693, and cases cited.
Testimony was introduced on the trial tending to show that a strip of ground about four feet wide, under the side of the tin-fehop next to Mr. Hull’s store, did not belong to the plaintiff, but belonged to Hull. The plaintiff stated in the application that he was the owner of the ground upon which the tin-shop stood. This is claimed to be a misrepresentation of title which avoids'the policy. It is only necessary to say on this subject, that, until after the fire, all parties supposed that the plaintiff owned the strip, and doubt was raised as to his title thereto by a subsequent survey; that the testimony tending to show that [533]*533Hull owned it was most unsatisfactory; and that the question of ownership was submitted to the jury with an instruction that if they found that the plaintiff was not the owner, he could not recover. Under this instruction the jury must have found that the plaintiff was the owner of such strip, and the verdict is conclusive of that question.
6. We think there is nothing in the point that the plaintiff failed to put the damaged property in the best possible order after the fire. The value of such property was trifling in amount, and there seems to be no proof that its value could have been improved! Hence, the refusal of the judge to give an instruction on that subject, asked on behalf of the defendant, was not error.
7. The only remaining defense relates to the thickness of the brick wall between the tin-shop and the hardware store. It is stated in the application that such wall was thirteen inches thick, whereas the testimony is quite satisfactory that it was only about eight and a half inches thick. Yet there is some testimony tending to prove that it was a thirteen-inch wall. The plaintiff testified that he measured across the door casing in the wall, and found the distance sixteen inches; and another witness testified that the door jamb projected one inch and a half beyond the wall on either side. The thickness of the wall, as stated in the application, was merely an estimate from such measurement made by the plaintiff, and it seems to have been an overestimate thereof. The judge gave the same instruction relative to such statement, that he gave concerning the alleged over estimate of the value of the insured property, and submitted it to thé jury as a question of fact, whether there was a misrepresentation in respect to the thickness of the wall. The verdict for the plaintiff shows conclusively that the jury found the wall to have been thirteen inches thick. While, probably, we should not have so found from the testimony, yet, inasmuch as there was some testimony to support the verdict in that particular, we are powerless to interfere.
[534]*534But we fail to find anj testimony tending to show tbat the plaintiff did not make an honest estimate of the thickness of the wall; and, inasmuch as the agent of the defendant was present when the measurement and estimate were made, and had full opportunity to correct the same, if erroneous, we should hesitate to reverse the judgment, even though it were conclusively proved that the wall was less than thirteen inches thick.
Many exceptions were taken .on behalf of the defendant to the rulings of the court on objections to the admission of testimony offered on the trial; but we discover no error in these rulings, or at least none of sufficient materiality to work a reversal of the judgment.
Upon due consideration of the whole case, it seems to us that the judgment of the circuit court ought to be affirmed.
By the Court. — It is so ordered.