Pool v. Milwaukee Mechanics Insurance

Maeshall, J. In the appeal of the Farmers Fire Insurance- Company there is presented the question whether the court erred in refusing the motion to change the place of trial on account of the prejudice of the people. The motion was regularly made, based on affidavits alleging facts tending to show that such prejudice existed. Such facts consisted largely of statements that various persons not named, and others named, had stated to the persons making the moving affidavits that the insurance companies concerned in the loss could not obtain a fair trial in the county of Ashland. The case was met, on the part of the plaintiff, by affidavits of most of the persons named in such moving papers, denying the making of such statements, and alleging that they entertained a contrary view. There was also a large number of opposing affidavits, to the effect that the [452] .business of the affiants, and their facilities for knowing the sentiments of the people, were such .that, if the prejudice complained of existed, they would be liable to know it, and that they had not heard any statements made indicating such prejudice, and that in their opinion there was none. The rule is well established that the granting or denying of an application to change the place of trial on the ground of the prejudice of the people is in the sound discretion of the trial court, and that its determination will not be disturbed on appeal unless it clearly appears that there has been an abuse of such discretion. Lego v. Shaw, 38 Wis. 401; Ross v. Hanchett, 52 Wis 491; Schafer v. Shaw, 87 Wis. 185. It is, in effect, held in Cyra v. Stewart, 79 Wis. 72, that when facts and circumstances are set forth sufficient to enable the court to judge for itself that there is sufficient ground for believing a fair trial cannot be had, met only by affidavits expressing an opinion to the contrary, the change should be granted, and that a denial constitutes reversible error. But such is not this case. Here, as stated, the facts consisted mainly of allegations that various persons named stated that an impartial trial' could not be had in the county. Most of such persons, by affidavit, denied making any such statements, or that they entertained such belief. Such affidavits were supplemented by others made by hotel keepers, physicians, police officers, editors, real-estate agents, and others, who would be likely, from the nature of their business, to hear statements indicating prejudice if any existed, and they testified that they had heard,none. The case thus made up in opposition to the change is quite as strong in favor of the ruling of the trial court as in Rowan v. State, 30 Wis. 129, where this court said: “It is said the affidavits in support of the motion were strong and positive in the statements showing the existence of prejudice and a general feeling of hostility against'the defendant, while the affidavits on the part of. the. state are merely negative in their [453] character. This is not an entirely accurate view to take of such evidence. If such prejudice prevailed as to require -a-change of the place of trial, it' seems incredible that such persons, whose business rendered it necessary to constantly meet and converse with considerable numbers' of their fellow citizens, should be .entirely ignorant of its existence.” That fits this case. Clearly, it cannot be said that there was an abuse of judicial discretion in denying the defendant’s motion. In the appeal of the Farmers Fire Insurance Company there is also presented the question whether the court erred in overruling a challenge of a juror for cause, and, if. so, whether that is reversible error, in view of the fact that the objectionable juror did not sit upon trial of the case: On this point, People v. Casey, 96 N. Y. 115, is confidently relied upon. That is to the effect that if, by the erroneous ruling, the party is obliged to exhaust all his peremptory-challenges, the error is harmful. The record here does not show such a case. It shows that all the peremptory challenges were exhausted, but not that the last challenge was used in striking from the panel the objectionable juror, or that the ruling was the cause which compelled such exhaustion of the challenges. The true rule, we hold, is laid down in Spies v. People, 122 Ill. 1, to the effect that it is not prejudicial error to overrule a challenge for cause, unless it is shown that an objectionable juror was forced upon the party, and sat upon the case after such party had exhausted his peremptory challenges. This court substantially adopted that view in Grace v. Dempsey, 75 Wis. 313, where it is said in the opinion by Mr. Justice' Cassoday, discussing a similar subject, “The statute expressly precludes this court from reversing any judgment for any error not affecting the substantial right of the appellant. R. S. sec. 2829.” There is nothing in the record to indicate that by such ruling the defendant was in any way prejudiced. [454] Patrick Hanraban, a witness for plaintiff, was asked the question, “Were the fumigators in general use for the purpose of fumigation? ” to which defendants objected as incompetent, irrelevant, and improper. It was insisted that the question was too broad, in that it should have been confined to the use of fumigators for goods similar to those covered by the policies. The answer to that is, if the contention is right, that the objection was not sufficiently specific; it did not suggest or direct the attention of the trial judge to the precise ground of inadmissibility claimed. Bowman v. Van Kuren, 29 Wis. 209; Neis v. Franzen, 18 Wis. 537; Tomlinson v. Wallace, 16 Wis. 224. Error is assigned because the court refused to include in the special verdict questions directed specially to the subject of whether it was usual to fumigate stocks of dry goods with sulphur fumigators. The question submitted, “Were ■¡the same in common use for that purpose?” following the questions directed to the use of the fumigators in the particular instance, was certainly sufficient. Probably the question whether the use of the fumigators increased the hazard of itself sufficiently covered the whole su bject material to the issues between the parties. On a former appeal in one of these cases — decision reported in’91 Wis. 530 — the judgment was reversed for failure of the trial court to submit to the jury the question whether the use of the fumigators increased the hazard. On the trials which resulted in the judgments appealed from the jury specifically found in each case, on that question, in favor of the plaintiff, and we cannot say, after a careful examination of the record, but that there is a legitimate foundation in the evidence for such findings; hence they must stand as verities. Neither in the briefs of defendants’ counsel nor in their arguments before the court were any exceptions urged to the judge’s charge submitting the question covering that subject to the jury. It appears that the defense [455] •of forfeiture on the ground that plaintiff increased the hazard by the use of the fumigators, within the meaning of the policies, failed. There are some other questions presented in the defendants’ briefs, but none of sufficient importance to warrant a particular reference to them. Suffice it to say that all have been carefully considered without discovering any reversible error. By the Oourt.— The judgment in each case is affirmed.