#### Bruger, Respondent, vs. Princeton & St. Marie Mutual Fire Insurance Company, Appellant.

*September 11*

October *9, 1906.*

•-{1) *Trial: Legal and equitable issues.*(2) *Evidence: Admissions: Oon-clusiveness.*(6) *"Verified copies, when receivable.*(3, 5-7) *Insurance against fire: Notice of other insurance: Amount of recovery: Instructions to fury: Evidence of value: Policy inconsistent with by-laws of insurer.*

.1. Where in an action on contract facts properly pleadable as a defense at law were so pleaded and were also pleaded as an equitable counterclaim for rescission, and trial of tbe legal issue resulted in a general verdict for plaintiff, there was no material error in granting a motion for judgment on the verdict before formally disposing o'f the counterclaim by findings against the defendant.

'2. An unqualified admission of a party against his interest does not preclude sending the issue involved to the jury where there is credible evidence fairly conflicting therewith.

•:3. The question whether, when an insurance policy was issued, the company was notified of existing insurance on the property, is *held,*on the evidence, to have been properly one for the jury.

-4. In an action upon a fire insurance policy the court charged tbat in case plaintiff recovered he was entitled to recover twelve nineteenths of the value of the house destroyed, but not to exceed $1,200; three eighths of the value of the furniture, but not to exceed $75; two thirds of the value of the wearing apparel, but not to exceed $50, and the value of the provisions, but not to exceed $50. There was no question that the limit of legitimate recovery for the provisions was two thirds of $19.21, and it does not appear that the jury allowed a greater -amount therefor. *Eeld,*that the instruction as to the provi*282sions was not prejudicially erroneous, since the jury must have-understood that they were to allow only two thirds of their value.

5. Sworn proofs of loss were received in evidence, and plaintiff testified that the statements therein as to the value of the personal property destroyed were correct. There was no objection to this evidence on the ground that it was not directed to. market value, and no cross-examination showing that it was not so directed. *Held,*that this evidence was sufficient to take-the case to the jury on the question of value.

C. A verified copy of a paper is not necessarily receivable in evidence-merely because the original is beyond the jurisdiction of the court. There should be, at least, some fair showing of efforts to obtain the use of the original, unless it is clear that they would have been fruitless.

7. In the absence of statutory prohibition or some rule of public policy to the contrary, a contract of insurance, whether made with a mutual or other company, will prevail 'over provisions in the articles of organization or by-laws of the insurer inconsistent therewith.

Appeal from a judgment of tbe circuit court for Green-Lake county: Ciiesteb A. Eowleb, Circuit Judge.

*Affirmed.*

Action to recover $1,315 on a policy of fire insurance. Tbe complaint was in tbe usual form. Defendant answered admitting tbe execution- and delivery of tbe policy but claiming-tbat it was void because tbe occurrence was produced by false-representations of tbe plaintiff of facts material to tbe risk, wbicb falsity was not known to the assurer till after tbe loss occurred. Tbe answer also put in issue tbe allegations of tbe complaint as to tbe interest of plaintiff in tbe property; also as to the amount of loss sustained and as to giving notice of loss as required by tbe contract. Defendant pleaded, particularly, tbat when tbe policy was applied for plaintiff represented tbat tbe cost and value of tbe dwelling bouse was-$1,800, whereas tbe value did not exceed $950; tbat it was expressly agreed that- defendant should not be liable for more than two thirds of tbe cash value of any building insured,, and tbat not more than two thirds of the cash value of any-building would be insured by tbe company, wbicb was well *283known to tbe plaintiff; tbat at tbe time application for the-insurance was made plaintiff falsely and fraudulently represented to defendant tbat there was no existing insurance on tbe property, while in truth there was such insurance to the-amount of $1,200, $700 being on tbe dwelling bouse, $100' on tbe household furniture, $25 on beds and bedding, $25 on family wearing apparel, $25 on provisions, and $325 on other-items, said insurance being in tbe Insurance Company of the-State of Illinois; tbat no notice of such existing insurance was given to tbe defendant, and tbat such circumstance of existing, insurance and tbat no notice was given to tbe defendant rendered tbe policy void by its terms. Defendant further answered tbat in furtherance of tbe fraud attempted as aforesaid, after tbe loss occurred, plaintiff delivered to tbe defendant a paper wherein be falsely swore tbat tbe dwelling bouse was worth $1,800, whereas it was only worth $950.

Tbe facts aforesaid pleaded to defeat tbe. policy on the-ground of fraud were set forth as a counterclaim for rescission. Tbe counterclaim was duly replied to. Tbe jury rendered a general verdict in favor of tbe plaintiff. Proper motions and exceptions were taken to raise tbe questions discussed in tbe opinion.

Tbe equitable issue raised by tbe counterclaim, after the-court granted plaintifPs motion for judgment, was in form closed by findings of fact to tbe effect tbat tbe allegations of fraud were untrue; tbat there was insurance on tbe plaintiff’s property when tbe policy in question was taken out, and tbat defendant was duly informed thereof; tbat plaintiff represented tbe dwelling bouse to have cost $1,800, and tbat it in fact cost tbat sum. Judgment was accordingly entered upon tbe verdict.

Eor tbe appellant there were briefs by *George B. Heaney*and Thompson, *Thompson &*Pinherton, and oral argument by *J. G. Thompson.*

Eor tbe respondent tbe cause was submitted on tbe brief of *Perry Nishern.*

*284MAksi-i all, ,J\

Some complaint is made respecting tbe manner in which the court disposed of the cause of action set forth bj way of counterclaim for a rescission of the contract of insurance. All the facts in regard thereto were properly plead-able as a defense at law, were so pleaded, and the issues raised in respect thereto were tried and closed by the verdict of the jury. Such being the case it does not seem necessary to consider any question as to the equitable defense.

It is undisputed that the contract of insurance, unless appellant was notified when it was made of the then existing insurance on the property, was void under the provisions thereof on that subject. The issue as to that was submitted to the jury by the court and the finding was in respondent’s favor. Appellant’s counsel claim that the evidence is conclusive that no notice of the existing insurance was giVen to the company and therefore that the verdict should have been set aside and a new trial granted, as requested.

The evidence as to the existing insurance is substantially as follows: Respondent applied to Mr. Hardell, secretary of the appellant, for insurance, who introduced him to Mr. Swanke, its agent, through whom the policy was obtained. Both Hardell and Swanke testified, unequivocally, that respondent said to them that he had no insurance on the property ; that there had been some but that it had run out. Respondent when first examined on the trial testified that he told such agent that he had insurance for one half the amount with a Mr. Schumekosky, through whom he obtained a loan. On redirect examination, later, he said he told the agent that the previous insurance had run out. When examined under sec. 4096, Stats. 1898, before trial, he said he told Hardell that he had taken out insurance but “it run out, I don’t know when,” and he said to the agent in answer to the question as to whether there was insurance on the property, “Yes, it run out I don’t know when, it will run out I don’t know when, or may have run out I don’t know when.” One of respondent’s *285daughters who was present when the application was made testified that ber father said to the agent that he got $1,200 of insurance through Mr. Schumekosky when the house was in process of construction; that he could not otherwise borrow money to finish it; that after he got the house done he wanted it to be in the appellant company when the other insurance should run out. She further testified that her mother expressed surprise at the charge of $10 for the policy in question, saying that in the other company we just had $1,200 altogether and had to pay $18. Another daughter of respondent, testifying on the subject of what occurred between respondent and the agent, said: “Pa said he has got insurance on the house for $1,200, but it shall run out, but he did not know when.” The evidence was undisputed that the agent asked the question in the written application as to whether there was any insurance on the property, and that it was answered, but that the answer was not written down. There are some other minor evidentiary circumstances relating to the matter, but none which materially change the situation indicated by the foregoing.

It must be conceded that the evidence is far from being satisfactory, but whether it be susceptible of conflicting reasonable inferences is quite another matter. If it be, then the court, upon familiar principles, properly left to the jury the labor of drawing the proper inferences.

The contention of counsel for appellant that respondent should be held bound by his admission made on two occasions that he informed appellant’s representatives that the previous insurance had run out, we cannot approve in face of the evidence of contrary statements made by him, and other evidence somewhat supporting the latter. This court upon a careful consideration of the matter in *Montgomery v. State,*128 Wis. 183, 107 N. W. 14, held that an unqualified admission of a party against his interest does not preclude sending the issue involved to the jury where there is credible evi*286■dence fairly conflicting therewith. It is considered here that the decision of the trial judge, who saw the witnesses and heard their testimony, should not be overruled in view of the fact that respondent testified on the two occasions when he made the admissions against his interest directly in conflict therewith, and there is some indication that he did not have a very correct idea of how to express past time as distinguished from present or future time, and the testimony of his two daughters rather supports the idea that he said to the agent that he had other insurance but did not know when it would run out. We will not discuss this branch of the case further. 'The trial court certainly had a much better opportunity to ■discover whether conflicting reasonable inferences could be drawn from the evidence than we have. There is no such clear indication of error in the conclusion reached as to warrant us in disturbing it.

It is insisted that the trial court erred in rejecting this requested instruction:

> “If you find from the evidence that *Mr. Bruger*told Harden and Mr. Swanke that the prior insurance had run out, your verdict should be for the defendant.”

From what has been said the instruction was properly rejected. The effect of it was that respondent should be held bound by his evidence of statements made to appellant’s representatives that the previous insurance had run out, though he may have made contrary statements and been sufficiently supported in respect thereto to warrant the jury in finding that the agent was in fact notified of the existing insurance. Moreover, it seems that the real issue in respect to the matter was fairly submitted to the jury in these words:

> “Unless you are satisfied that a preponderance of the evidence establishes that information as to other insurance was given to Swanke, as claimed by plaintiff, your verdict must be for the defendant.”

The jury must have understood that instruction to refer to ■existing insurance. That was the vital matter, as the whole *287trend of the case clearly indicated. It must have been appreciated by the jury to be a turning point in the cause.

This instruction is claimed to. have been injuriously misleading :

> “In case plaintiff recovers he is entitled to recover twelve nineteenths of the value of the house destroyed, but not to exceed $1,200; three eighths of the value of the household furniture destroyed, but not to exceed $75; two thirds of the value of the family wearing apparel destroyed, but not to ■exceed $50, and the value of the provisions destroyed, but not to exceed $50.”

There was no question, it seems, but what the limit of legitimate recovery for the provisions destroyed was two thirds of $19.21. The instruction on that branch of the case might well have been more precise, but it does not seem that the jury could have fairly gathered the idea from what the court said, under all the circumstances, that only a proportionate share ■of the value destroyed as to all other property but the provisions was recoverable, and that it was competent to allow him the full value thereof or of the part destroyed. It is considered that they must have taken the instruction as if it read, two thirds of the value of the family wearing apparel destroyed, but not to exceed $50, and of the value of provisions destroyed, not to exceed $50. There can be no reasonable doubt but what that is just the idea the court intended to ■express and which one would naturally gather from the whole instruction on the subject of damages, in view of all the circumstances. The word “of” after the word “and,” making the instruction read “and of the value of the provisions,” etc., seems to be in place by necessary implication.

We are unable to see from the analysis which counsel for ■appellant make of the total amount found by the jury, or from anything we can discover, that the jury in making up their verdict failed to allow the proper amount for destroyed provisions. Such analysis has been carefully tested by the record with the result indicated.

*288Tbe next claim made is that there was no evidence to go to tbe jury on tbe question of tbe value of tbe personal property destroyed. Tbe sworn proofs of loss were offered in evidence, and respondent testified in respect to tbe statement therein contained regarding tbe values of tbe destroyed personal property that it was correct. There was no objection to tbe competency of this evidence, in that it was not directed to the' market value, nor any cross-examination showing that it was^ not so directed. It is considered that such evidence was proper for consideration by tbe jury and was sufficient to carry tbe case thereto on tbe subject to which it related.

A paper was produced claimed to be a substantial copy of' tbe application made for tbe first policy. It was offered in evidence for tbe purpose of showing that, therein, respondent placed tbe value of tbe bouse at $950, whereas when the' policy in suit was taken be represented it to be worth $1,800. Tbe agent who sent tbe original to tbe insurance company testified that tbe copy was correct, except in some particulars not material. There was no excuse given for not producing such original, except that it was out of tbe jurisdiction of tbe court. On objection tbe paper was rejected. Tbe claim is made that error was thus committed and tbe ruling in *Speiser v. Phœnix Mut. L. Ins. Co. 119*Wis. 530, 533, *97*N. W. *207,*is relied on. In that case there was proof that tbe possessor of tbe original was out of tbe jurisdiction of the court and refused to allow it to go out of tbe office. A deposition was therefore .taken, tbe original paper being produced, copied, and tbe copy certified and attached to tbe deposition in lieu of tbe original. Under those circumstances tbe court held that secondary evidence was admissible. Here, as has been observed, no effort was made to obtain tbe original paper. Under tbe circumstances we are not inclined to go so far as to bold that tbe ruling of tbe trial court upon tbe question of competency is so clearly wrong that it should be held erroneous ; that a verified copy of a paper should, at all events, be-*289received in evidence merely because tbe original is beyond tbe jurisdiction of .tbe court. Tbe better practice is, in sucb cases, to do as was done in *Speiser v. Phœnix Mut. L. Ins.*Co., *supra.*At least some fair showing.should be made of efforts to obtain tbe use of tbe original, unless it is clear that they would have been fruitless. Eor aught that appears, tbe possessor of tbe original, upon application, would have allowed appellant tbe use of it. Moreover, no reason is perceived why evidence could not as easily have been made as in tbe *Speiser Case.*Tbe authorities cited there do not go so far as to clearly support tbe offer of tbe copy in question. In *Bonner v. Home Ins. Co.*13 Wis. 677, tbe court very clearly indicated tbe necessity for a much better foundation for tbe reception of tbe secondary evidence than mere proof of tbe original being beyond tbe jurisdiction of tbe court. In *Wis. River L. Co. v. Walker,*48 Wis. 614, 4 N. W. 803, tbe same is true. There proof was made of a demand for tbe original and a refusal to produce or exhibit it. In 1 Jones, Evidence, § 217, it is said that in tbe federal court tbe secondary evidence is held admissible without notice to produce or effort to obtain the original where it is out of tbe jurisdiction of tbe court, but it is said that other courts bold otherwise, and that tbe better practice is to take tbe deposition of tbe person having possession of tbe original; that a copy may then be made a part of tbe deposition, or in case tbe witness refuses to produce it secondary evidence may be given. It seems that tbe safe practice is along tbe lines indicated} though we do not now bold that an effort to obtain tbe original or a certified copy in proceedings to take a deposition is absolutely essential. However, as indicated, there must be some foundation for receiving tbe secondary evidence more substantial than tbe mere fact that tbe original paper is out of tbe jurisdiction of tbe court.

Eurtber error is claimed because tbe court refused to receive in evidence a pamphlet claimed to contain a copy of tbe *290articles of organization and. by-laws of appellant, for the pur.pose of showing that they prohibited the company from insuring more than two thirds of the value of any property including the insurance of other companies. The articles and bylaws of the company were not incorporated in the policy nor "made a part thereof by reference, and the condition in the contract did not contain the words “including the insurance of other companies.” While it is doubtful, at least, whether the offered evidence was admissible, it is a sufficient answer to the assignment of error that the exclusion thereof was not harmful, since the rule is that, in the absence of a statutory prohibition or some rule of public policy to the contrary, the contract of insurance, whether made with a mutual or other company, will prevail over provisions in the articles of organization or by-laws of the insurer inconsistent therewith; that the latter cannot invoke any such inconsistent by-law or •article to defeat a policy claim. *Ledebuhr v. Wis. T. Co.*112 Wis. 657, 88 N. W. 607; *Wuerfler v. Trustees Grand Grove W. O. D.*116 Wis. 19, 93 N. W. 433; *Koerts v. Grand Lodge Hermann's Sons,*119 Wis. 530, 97 N. W. 163. In the last case cited, as regards the efficiency of a provision of the organic law of a company to avoid a contract which was knowingly issued in violation thereof, the court, speaking by Mr. Justice WiNsnow, said:

> “In the absence of an absolute statutory prohibition, or a violation of public policy, a mutual benefit society cannot defend on this ground where it has knowingly issued a certificate payable to such a beneficiary, and the assured has fully performed the contract on his part.”

There is no other question presented that seems to require special treatment. As said at the beginning, the manner in .which the court disposed of the equitable issues we do not -deem material, since it is in harmony with the verdict which covered the whole subject involved.

*By the Court.*— The judgment is affirmed.