#### Milwaukee Steel Type & Die Company, Respondent, vs. American Central Insurance Company and others, Appellants.

*October 26*

November *14, 1916.*

*Jurors: Excuse by court: Waiver of errors in selection: Evidence: Competency: Harmless error: Instructions to jury: Fire insurance: Proofs of loss as evidence: Costs: Taxation: Defendants united in interest treated as one party.*

*1.*Independently of sec. 2849, Stats., the circuit court may in its discretion excuse a juror because liis relations to either party to the action are such, as would be liable to operate prejudicially in the case.

*2992. Failure to object to the collected jury before they are finally sworn is a waiver of any precedent error in their selection.

3. The admission of incompetent evidence is not a prejudicial error where, even if it had been excluded, the jury would in all probability have reached the same result.

4. A trial court may, in charging the jury, call to their attention the evidence produced on both sides, and even speak of the effect of the evidence as given on one side, and the effect of that given on the other, when such effect is clear, leaving it for the jury to determine where the truth lies; and in so doing there is no infraction of the rule that the court should not suggest what is established as to any controverted matter.

5. In an action upon insurance policies the charge to the jury is *held*not to have carried the idea that the proofs of loss were evidence of loss or damage.

6. The six defendants who issued the insurance policies in suit having joined in answering the complaint, and the cause having been treated throughout as one in which they were united in interest, all being represented by the same attorneys and the cause submitted to this court on one printed case and one brief on each side, all will be treated as one party for the purpose of taxing costs in this court, although each defendant separately appealed.

Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. TuiiNeb, Circuit Judge.

*Affirmed.*

Action to recover on six insurance policies issued to plaintiff by defendants, insuring tbe former against loss by fire on property consisting of implements, models, patterns, and other property for use, and in use, by plaintiff in its manufacturing business in Milwaukee, Wisconsin. Each of tbe defendants issued a policy to the plaintiff, permitting coinsurance.

Plaintiff claimed tbe insured property was damaged by •fire to tbe extent of $23,782.22 on May 9, 1915, and that tbe sound value of such property at tbe time of tbe fire was $28,703.99.

Tbe defendants joined in an answer putting in issue tbe title to tbe property, tbe sound value thereof, and tbe damage.

*300Tbe cause was submitted to a jury for a special verdict, resulting in findings in plaintiff’s favor as to tbe title and fixing tbe damages on tbe property described in tbe proof of loss at $19,500.

Defendants claim that tbe property formerly belonged to L. E. Larson Company of Chicago, an Illinois corporation, and was never conveyed to tbe plaintiff. That subject on tbe evidence was covered by four special findings, as follows: Tbe machinery described in Exhibit 1 — A. was not tbe machinery formerly used and owned by tbe L. E. Larson Company in Chicago. Tbe material described in Exhibit 1 — A was not formerly used and owned by tbe L. E.'Larson Company in Chicago. Tbe patterns described in Exhibit 1-A were not formerly owned by tbe L. E. Larson Company.

Judgment was rendered for $19,500 and interest, tbe same being divided between tbe six defendants according to their respective liabilities under tbe policies, one sixth of tbe costs being awarded against each defendant.

Tbe defendants separately appeal.

Tbe cause was submitted for tbe appellants on tbe brief of *Gill &*Barry, and for tbe respondent on that of Schmitz, *Wild & Gross.*

Maeshall, J.

Tbe court, on its own motion, excused a juror who was called, upon it appearing that be was tbe local agent for one of tbe defendants. They objected to such ex-cusa!

Tbe claim is made that the court bad no right to excuse tbe juror because no challenge was made upon tbe ground that such juror did not stand indifferent to tbe cause and no. ground appeared calling for tbe excuse under sec. 2849 of tbe Statutes. Independently of tbe statute, it is competent for tbe court, in its discretion, to excuse a juror because bis relations to either party to tbe action are such, or some cause exists, which would be liable to operate prejudicially in tbe *301case. *Sutton v.*Fox, 55 Wis. 531, 13 N. W. 477. Furthermore there does not appear to have been any objection made to the collected jury before they were sworn, which operated as a waiver of any precedent error, if there were any. *Cornell v.*State, 104 Wis. 527, 80 N. W. 745; *Emery v. State,*101 Wis. 627, 78 N. W. 145.

Complaint is made because of some evidence which the court permitted to be introduced respecting the value of property destroyed. All the proof on that subject has been examined, resulting in a conclusion that no prejudicial evidence was improperly allowed over objection. It is not thought necessary to refer thereto in detail. The real question involved was submitted to the jury, understandingly, to find the fact on all the evidence bearing on the subject and it does not seem probable, even if the particular evidence complained of had been excluded, that any different result would have been reached. There was much evidence, as to.value, received, of a perfectly legitimate character and seems not to have been controverted by anything, produced by appellants.

■ Error is assigned because the court refused to direct a verdict in favor of defendants upon the ground that the evidence showed that the insured property at one time belonged to L. E. Larson Company, and there was no proof showing that such company ever authorized a conveyance thereof to the respondent. The jury found specially that the property was not formerly owned by the L. E. Larson Company and there was ample evidence tending to establish the facts found in that respect, therefore the motion for a directed verdict was properly denied.

In submitting the question as to whether machinery described in Exhibit 1 — A was machinery formerly used and owned by L. E. Larson Company of Chicago, the court said:

> “It is contended,, and evidence has been given to that effect by Larson, that the property of the company was, a great deal, or most of it, destroyed by fire and that what was left was *302some machinery, and that tbe machinery was afterwards sold and the proceeds of it used for payment of the debts of the corporation, and thus all of the property of that corporation wiped out.”

Complaint is made of that upon the ground that the court laid emphasis upon the fact that Larson had so testified and that it was, in effect, saying to the jury that the property of the company, or a great deal of it, was destroyed by fire. The court at this point merely stated the evidence as contended on the part of the plaintiff and the effect of it if true. The jury must have so understood the matter. The statement was followed by one as to the evidence as contended by defendants, and the question was left to the jury to find the fact upon the whole evidence.

A trial court may, in submitting a controversy to a jury, call to their attention the evidence produced on both sides, and even speak of the effect of the evidence as given on one side, and the effect of that given on the other, when such effect is clear, leaving it for the jury to determine where the truth lies. In so doing there is no infraction of the rule that, in giving instructions, the court should not suggest what is established as to any controverted matter. There was nothing in the charge in this case prejudicially out of harmony with anything said in *Kamp v. Coxe Bros. & Co. 122*Wis. 206, 99 N. W. 366, or *Gussarl v. Greenleaf S. Co.*134 Wis. 418, 114 N. W. 799, or any other case.

Further complaint is made.that the court, in submitting the question as to the damage to the property described in the proofs of loss, so instructed the jury as to carry the idea to them that such proofs were evidence of value and damage. It does not seem so. The question was carefully explained, the proofs being referred to as containing a list of the property. Nothing was said in the charge, as we read it, intimating that such proofs were evidence on the ultimate fact to be determined. The court particularly referred to there *303being much proof as to tbe amount of property and its value, and as to tbe total destruction of property and partial injury to property, and tbat tbe question required a finding as to tbe damage to tbe property described in tbe proofs of loss. Taking tbe charge as a whole, it is considered tbat tbe jury did not understand from anything tbe court said tbat tbe proofs of loss were evidence of loss or damage.

Some other complaints are made in respect to tbe instructions, but none which seem to merit special mention or discussion. Tbe case seems to have been fairly tried and submitted to tbe jury and a conclusion reached without prejudicial error.

Tbe defendants having joined in answering tbe complaint, and the cause having been treated, all tbe way through, as one, in which tbe defendants were united in interest, all being represented by tbe same attorneys, and’tbe cause submitted to this court on one printed case, and one brief on each side, all defendants will be treated as forming one party for the purpose of taxing costs in this court, though defendants separately appealed, one sixth of tbe total taxed to be awarded against each defendant, as in tbe court below.

*By the Court.*— Tbe judgment is affirmed, costs to be taxed as indicated in tbe opinion.