Dwyer v. Continental Insurance

Stayton, Associate Justice. This action was brought by Thomas Dwyer, as the assignee of A. M. White, against the Continental Insurance Company, to recover upon a policy of insurance issued to White to cover loss by fire upon a stock of goods. Amongst other defenses, the appellee pleaded that the goods were burned.by White or his agent for the purpose of defrauding the insurance company. The cause was tried by a jury, and there was a verdict and judgment for the insurance company. The evidence bearing upon the defense above indicated ivas conflicting, and the court charged the jury as follows: “ The burden of proof is with the plaintiff, and the jurors are the exclusive judges of the facts, of the evidence, of the weight of evidence, and of the credibility of the witnesses; ” and that “ the burden of proof is on the plaintiff in this cause on the following points: 1st, as to the existence and contents of the policy of insurance sued on; 2d, as to the value of goods on hand and destroyed by fire; 3d, that the loss was an honest one; that is, that it was owing to causes not traceable to A. M. White nor to his agency.” [184] The appellant asked the court to instruct the jury as follows: “ The defendant having charged as matter of defense that the firo was fraudulently caused by the act or procurement of A. M. White, the burden of proof is upon the defendant to show that the fire was caused by the fraudulent act or procurement of said A. M. White;” which was refused. These matters are assigned as error. There is nothing in the contract of insurance which takes it out of the ordinary rule in an action to recover the amount of a' loss covered by a policy. The general rule is, “ that the obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue.” 1 Greenl., 74. Such is the rule in this case. 2 Greenl., 408; 1 Gray, 534; 2 Phillips on Ins., 674; May on Ins., 583; Sibley v. St. Paul F. & M. Ins. Co., 8 Reporter, 809. The court in effect instructed the jury that they must find for the defendant unless the plaintiff produced a preponderance of evidence to show that the insured property was not burned by A. M. White or his procurement. This was error, unless the presumption is that the owner of insured property burns, or causes property to be burned, whenever it is lost by fire. There is no such presumption, but the contrary presumption does exist. It is contended that the preponderance of evidence is so greatly in favor of the proposition that the insured property was burned by White or his agency, that the judgment should not be revised, even if the court did err in giving and refusing the charges above referred to. We are not authorized to nicely weigh the evidence, and to dispose of the case as a jury might have done under proper instructions. The appellant was entitled to have the jury pass upon the evidence under a proper charge. The other matters assigned as error need not be considered, as they will not probably arise upon another trial. For the error of the court in giving and refusing charges referred to, the judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered May 12, 1882.]