Campbell v. Germania Fire Insurance

Maeshall, J. ’ No time need be spent on whether any of the findings of fact are contrary to the evidence. We are relieved therefrom because, as indicated in the statement, there was a conflict of evidence on all material issues, requiring them to be submitted to the jury, and because counsel for appellant concede in their brief, as they did on the oral argument, that such is the case. The most claimed is that there are findings, vital to the judgment, which are against the great preponderance of the evidence. If that were so, it — 336 — would not warrant setting aside the decision by tbe jury, confirmed, as it was, by the trial judge. No rule is more firmly established than that findings by a jury, approved by the trial court, are proof against attack here, if supported by any believable evidence, in any reasonable view of it. An appearance, by the history of the trial, that such findings are against the preponderance, or the great preponderance of the evidence, is unimportant, unless such preponderance so conclusively proves the contrary of such findings as to leave no jury question in respect to the matter. In view of the foregoing, it must be held that the findings here are to be regarded as verities. On the question of whether there is any believable evidence to sustain a verdict, this court has said there is not when it is contrary to all reasonable probabilities, Meyer v. Home Ins. Co. 127 Wis. 293, 106 N. W. 1087; but so long as there is a state of evidence requiring conflicting probabilities to be considered, a jury determination either way cannot be said to be against all reasonable probabilities, even though the evidence of one witness,- — • unimpeached by matters of common knowledge, or conceded facts, or established physical situations, — stands opposed by the evidence of several witnesses. That is the effect of Badger v. Janesville C. Mills, 95 Wis. 599, 70 N. W. 681; Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615, 71 N. W. 1034; Flaherty v. Harrison, 98 Wis. 559, 14 N. W. 360; Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 80 N. W. 467; Samulski v. Menasha P. Co. 147 Wis. 285, 133 N. W. 142. In the last case cited, the rule that evidence on one side of a controversy will warrant setting aside, on appeal, of a jury finding in favor of the other, was confined to instances where the finding is contrary to unquestionable physical situations or common knowledge, or conceded facts. Mere weight of probabilities or inferences against the findings is not sufficient. It is needless to add that the situation here does not satisfy that test, and that the judgment must be regarded as — 337 — right unless some error was committed on the trial which may probably have influenced the jury unfavorably to appellant. Mr. Bein, who testified to having discovered the place of origin of the second fire and put it out, said that'when he reached such place,. Alfred Campbell was near by and he had a conversation with him. Evidence had already been introduced respecting some suspicious circumstances indicating that the fire was of incendiary origin and that Campbell and his wife might be the guilty parties. In that situation, Bein was twice asked, “Did you have a conversation with him at that time ?” and the witness answered in the affirmative. He was then asked, “What was that conversation?” The court finally sustained an objection to the question for want of sufficient foundation therefor, indicating that the evidence might be admissible further on by saying, “You may, however, reserve the right to recall the witness later.” That right was not exercised. It is contended that prejudicial error was committed at this point. The inquiry and objection mentioned presented a question of competency. The court did not exclude the proffered evidence, except temporarily. As counsel did not return to the subject, though the basis therefor was much strengthened and the door was carefully left open therefor, it must be held that the matter was waived. Moreover, the nature of the question was such that, in the most favorable light for appellant, prejudicial error does not affirmatively appear. The question did not necessarily suggest that the conversation was in respect to any circumstance of a criminating nature. There was no suggestion in it, or aside, to indicate the materiality of the conversation. This court will not reverse a judgment because of the rejection of evidence, unless its materiality clearly appears and it likewise appears that the exclusion might have affected the result unfavorably to the party complaining. ■ It is further contended that error was committed because — 338 — Mrs. Campbell was permitted to testify to tbe amount of the loss she sustained, using a copy of the list of articles claimed to have been destroyed which she and appellant’s agent made shortly after the fire. She testified, as indicated in the statement, in effect, that she knew the original list was correct when made and that the paper she used to testify from was a correct copy thereof, and satisfactory proof was made as to absence of such original. Under those circumstances it was proper to allow her to use the copy to refresh her memory, or to read from it, or to allow it to be introduced as part of her evidence. Bourda v. Jones, 110 Wis. 52, 58, 85 N. W. 671; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Jones, Ev. §§ 877 to 881, inclusive. Several instructions requested which the court refused to give, were worded appropriately for submission of the case for a general verdict. They were in form that, if the jury believed from the evidence specified things “the plaintiff is-not entitled to recover in this action,” or “your verdict should be for the defendant.” The form of the requests warranted, their rejection. Johnson v. St. Paul & W. C. Co. 126 Wis. 492, 105 N. W. 1048; Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48; Odegard v. North Wis. L. Co. 130 Wis. 659, 110 N. W. 809. The trial court gave instructions applicable to each of the special questions and no additional instructions of that character were requested which were not sufficiently covered by those which were given. Complaint is made because the court, in instructing the jury on the question relating to the amount of loss, said: “You will recall the evidence that a great many articles of personal property were totally destroyed and that some articles were not destroyed but were damaged.” It is said that such language involved the suggestion that none of the articles of personalty were saved. It does not seem so. The instruction was in exact accord with the evidence. If counsel for appellant supposed that any explanatory instruction was — 339 — necessary to guard against tbe jury being misled, they should have requested such. It does not appear that there was any such danger. The jury were instructed that the alleged admissions of Campbell were not entitled to weight unless the jury were satisfied that such admissions were freely made and not under such compulsion, threats, intimidation, promises of immunity, or persuasion, as to prevent him from being a free agent in the matter. Complaint ’ is made of that, solely, upon the ground that there was no evidence warranting it. The admissions claimed, as indicated in the statement, amounted to a confession by Campbell to a public official that he and his wife were guilty of the crime of arson in respect to the de-i struction of the property. ■ The instructions, in the abstract, were correct. Keenan v. State, 8 Wis. 132; Connors v. State, 95 Wis. 77, 69 N. W. 981; Hintz v. State, 125 Wis. 405, 104 N. W. 110. The circumstances under which the alleged confession was made furnished some basis for the cautionary instructions. Probably the character of Campbell had something to do with the matter. He was called from his working place in the woods by a state official and his attorney, and, in a room away from his wife, who was likewise called, and apart from any one else, he was subjected to a long investigation. The nature of the alleged confession probably aroused suspicion as to its having been given freely and intelligently. According to the witness who testified on the subject, Campbell rather volunteered to accuse himself and his wife, with whom he was living agreeably, of having committed a most serious crime. Notwithstanding the witness testified that the confession was freely made, the circumstances were consistent with a contrary view. Mrs. Campbell, who was examined by the investigator about the same time, testified that an effort was made to intimidate her and to entrap her into signing a statement they had prepared, without her knowing its contents. Under all the cireum340 stances, it seems it was not prejudicial error, if error at all, to give the instructions. The jury heard the evidence. They were not obliged to believe it. They were left entirely free to pass thereon and to give due weight thereto in case of their coming to the conclusion that the conditions mentioned in the instructions were satisfied. The jury were instructed that if a conspiracy was formed to burn the property and collect the insurance, as defendant claimed, but it had been abandoned by Campbell before the alleged confession was made, no weight should be given to the evidence of such confession. As matter of abstract law, that is correct. Miller v. State, 139 Wis. 51, 89, 119 N. W. 850. “When the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own, to affect the others.” Wharton, Grim. Ev. (9th ed.) sec. 699. True, in case of such a conspiracy as is claimed to have existed here, the common design cannot be said to have been accomplished until the insurance shall have been obtained. If counsel for appellant had desired the instruction given to be accompanied by an explanatory feature, they should have requested it. There was certainly evidence of an abandonment by Campbell of the fraudulent design, if one had been formed, as claimed. If he confessed to having, in concert with his wife, set the fires, he must have -known that if such wore established to be the fact, it would be fatal to the full accomplishment of such design. Doubtless it was upon the theory that such a confession would evidence an abandonment of the conspiracy that the instruction was given. So looking at the matter, which we think is a reasonable view to take, there was a sufficient basis for the instruction to preclude condemning the giving of it as fatal error. No question is raised but what all the property destroyed was covered by the policy of insurance. It was conceded on the argument that such was the case, but whether such property as was removed from the house and stored in the barn on — 341 — tbe premises and there destroyed was within the recoverable loss, counsel, when interrogated in respect to the matter on the argument, did not seem prepared to affirm or deny, but it seems to be definitely covered by the policy. That contains a provision to the effect that, property removed from its insured location on account of a fire shall be deemed covered by the insurance in its new location for the period of five days. It may well be that considerable of the furniture and goods which were in the house were removed therefrom and stored in the bárn and there destroyed. There is evidence that such was the fact. . That tends, strongly, to harmonize the evidence as to the amount of things removed from the house and with the articles claimed to have been destroyed. It makes no difference which place they were in when burned, in view of the terms of the policy and the finding that respondent Campbell complied with the requirement to use all reasonable means to save and preserve the property at and after the fire. It is quite likely that a considerable of the things removed from the house were, on the Sunday following, stored in the barn and shed attached thereto, and, since a watch was kept for a considerable time after the house fire had practically died down, that the barn and shed were reasonably thought to be a fairly safe storage place until the following Monday. The removal of the horse from the barn is not necessarily fatal to that view, as the difficulty of handling such an animal in case of the barn where it is located being on fire is notorious. The goods, it seems, were stored mostly in the shed. Witnesses testified that they remained at the ruins of the house all night, and the next day until a drizzling rain set in and they supposed there was no danger of the ruins setting fire to anything else, and that they “helped to put a lot of stuff which had been out all night into the shed.” In the face of the uncontroverted evidence on that subject, the evidence to the effect that no such amount of property was destroyed by the burning of the house as was described in the proofs of loss, does not go very far toward impeaching such — 342 — proofs or convicting Mrs. Campbell of having knowingly testified falsely. The real effect of her evidence is that the goods were destroyed by the fires, not, necessarily, that they were all destroyed by the fire which burned the house. The foregoing covers all suggestions of counsel which seem to merit special mention. We find no clearly harmful error, if error at all, in the record. By the Court. — The judgment is affirmed.