Kobin v. Saint Paul Fire & Marine Insurance , 150 Wis. 591 ( 1912 )

KekwiN, J.

Tbe first error assigned is that there was no proof of plaintiff’s title in fee simple in tbe real estate upon which tbe building destroyed by fire stood. It is claimed on tbe part of tbe appellant that tbe title could not be established by oral testimony, and that tbe best evidence of title to real property, when tbe same is in issue, consists in such muni-ments of title as deeds, mortgages, etc., and that unless tbe absence of such evidence is satisfactorily explained parol evidence will not be received to prove title. In tbe instant case the plaintiff proved possession of tbe property at and prior to tbe time tbe policy was issued. Besides, tbe policy issued upon plaintiff’s bouse described it as “bis two-story, sbingle roof, frame dwelling bouse” and was issued upon a written application representing tbat tbe building was upon land owned by tbe plaintiff.

Proof of possession is sufficient prima facie evidence of title to real estate, and tbe evidence-bere went beyond tbat and is ample to make a prima facie case of title in plaintiff. Wausau B. Co. v. Plumer, 35 Wis. 274, 281; Loberg v. Amherst, 87 Wis. 634, 58 N. W. 1048; 4 Wigmore, Ev. § 2515.

Counsel for appellant attacks tbe answers to tbe second and third questions of tbe special verdict as not being supported by tbe evidence. It is time plaintiff in bis evidence contradicted bimself several times and gave some evidence wbicb would strongly indicate tbat be wilfully swore falsely. Put after a careful examination of all tbe evidence we are not prepared to say tbat tbe ansyvers of tbe jury to these questions should be disturbed. It appears from tbe record, and was so stated by tbe trial judge, tbat tbe plaintiff did not understand tbe English language well and apparently was considerably confused in answering questions under tbe very severe cross-examination by counsel for appellant. Tbe court below and tbe jury were in far better position to judge of tbe credibility of tbe evidence of plaintiff than we are. After a careful examination of tbe record tbe court is of opinion tbat tbe answers of the jury to tbe second and third questions of tbe special verdict should not be disturbed. Meyer v. Home Ins. Co. 127 Wis. 293, 106 N. W. 1087; Wunderlich v. Palatine Ins. Co. 115 Wis. 509, 92 N. W. 264.

It is insisted in tbe brief of counsel for appellant, and also was pressed in argument bere, tbat tbe court committed reversible error in its instructions upon tbe burden of proof wherein it instructed tbat tbe burden of proof on both tbe falsity of statement and wilfully false swearing was upon tbe defendant, and it was claimed, in view of tbe evidence produced, tbat tbe burden of proof was shifted. There was no error in tbe charge. The burden of proof did not shift. Winn v. Itzel, 125 Wis. 19, 103 N. W. 220.

There are some other detailed errors assigned, which we have examined but deem unnecessary to discuss. We find no prejudicial error in the record.

By the Court. — The judgment is affirmed.