Jacobs v. Queen Insurance Co. of America

Maesiiall, J. In this case because of interest of near relatives in the result, the Chief Justice deemed it improjier for him to participate. The remaining justices being equally divided on a question vital to the result on defendant’s appeals,, the judgments as to such appeals must be affirmed see necessitate. Justices Winslow and Podge concur with the decision of the trial court, while Justice Siebeckee and the writer entertain a different opinion. In harmony with an unwritten rule for the treatment of such situations no opinion will be-filed. It seems best to say for the guidance of counsel that there is. a further unwritten rule in this court, that a case once decided will not be opened as to questions already considered, unless that is rendered necessary by a change in the views of one or more justices, participating in the matter at first. On plaintiffs’ appeal error is assigned because the court ruled out a notice given by the building inspector of Milwaukee condemning as dangerous the front wall of the building and ordering it to- be taken down. It was claimed that such dangerous character was caused by the fire. Prior to such offer evidence was received showing that the inspector was-duly authorized in such case to impose upon the owner of a. [613] building the duty to take down, dangerous walls. Tke bearing of the evidence was on the amount of loss to the building caused by the fire. It seems to have been established beyond reasonable controversy that the building was not totally destroyed and therefore under the terms of the policy the damages, to the structure were a proper subject for adjustment by arbitration, and were so adjusted. That being the case no question in regard to. the matter was open for consideration upon the trial in the absence of evidence warranting a finding that the arbitrators acted fraudulently or outside their jurisdiction. Fox v. Masons' F. A. Asso. 96 Wis. 390-395, 71 N. W. 363; 4 Joyce, Insurance, §§ 3248-3253. On all questions of fact in that regard the jury found for the defendant and it is conceded that such finding was warranted on the evidence produced. An examination of the record leads to the conclusion that no •other finding could fairly have been made and that the evidence rejected, had it been introduced, would not reasonably have changed the result. Therefore the ruling complained of whether proper or not worked no harm to the plaintiff and constitutes no prejudicial error. By the Gourt. — On plaintiffs’ appeal the judgment is affirmed, and on defendant’s appeals the judgments are affirmed. . s Gassoday, O. J., took no part.