Opinion
14768
November 14, 1938.
Before LIDE, J., Charleston, March, 1938. Affirmed.
Action by J.C. Brooks against the Michigan Fire Marine Insurance Company on a fire insurance policy. From an order, dismissing both parties' appeals from an order granting plaintiff a new trial on one of the issues after a verdict for the defendant and remanding the case for a new trial on such issue and entry of judgment for defendant on the other issue, both parties appeal.
The order of Judge Lide requested to be reported follows:
This matter comes before me on appeal from an order of Hon. Paul M. Macmillan, Judge of the Civil and Criminal Court of Charleston, dated January 29, 1938, granting a new trial on one of the issues in this cause. Both plaintiff and defendant have appealed from this order, and I have heard argument of counsel for both parties on these appeals.
The suit was brought upon a policy of fire insurance covering in the amount of Five Hundred ($500.00) Dollars, the dwelling house named in the policy and in the amount of Two Hundred ($200.00) Dollars, the furniture and household goods therein. The trial resulted in a verdict for the defendant. Plaintiff moved for a new trial, basing the motion upon certain alleged errors in the charge to the jury. Judge Macmillian, after hearing the motion, made an order in which he finds that there is no occasion to disturb the verdict of the jury so far as the loss on the real estate is concerned, but that in view of the fact that the charge complained of failed to bring to the attention of the jury that as to the furniture the question as to the ownership of the real property would have no bearing, and because there was no specific mention in the charge as to personal property, a new trial should be granted solely on the issue of the loss of personal property, and he so ordered.
Plaintiff appeals from this order and contends that a new trial should be granted as to the entire case, basing this contention upon two grounds; first, because he alleges that the charge is erroneous in its statement as to the burden of proof, and second, because the trial Judge erred in not granting a new trial on all of the issues when he found grounds for a new trial as to one of them.
I am not of the opinion that either of these grounds of appeal is well founded. If the record contains no error, and I find none in relation to the question of the loss on the building, there is no occasion to set aside the verdict as to that because of some irregularity relative to the question as to the loss on the personal property, and a new trial on the latter issue can properly be ordered without disturbing the verdict so far as it concerns the real estate.
As to the other alleged error in the charge relative to the burden of proof, the suit is on an insurance policy, and the defendant set up as a defense against payment of the loss the provision in the policy that it would be void if the interest of the insured be other than unconditional and sole ownership or if the subject of insurance be a building on ground not owned by the assured in fee simple, and alleged in its answer that the interest of the plaintiff was not unconditional and sole ownership and that he did not own in fee-simple the ground upon which the building stood. While it is true that the burden of proof rested upon the defendant to prove this state of affairs, which would result in a forfeiture of the policy, yet it appears from the testimony at the trial, which I have read, that plaintiff in his direct examination in chief admitted that he did not own the ground upon which the building stood and undertook to prove a waiver of this defense on the part of the company by testifying that he had made a disclosure of this state of affairs to the agent, and that the agent issued the policy with notice of it. After this testimony there was no issue left in the case as to the plaintiff's ownership, since he had admitted the lack of it, and the issue for the jury was limited to the question of waiver. The burden of proof, therefore, shifted from the defendant, as to whom the necessity of proving forfeiture no longer existed, to the plaintiff, who assumed and must carry the burden of establishing waiver, and from a reading of the entire charge of the trial Court it is obvious that in discussing the burden of proof he was referring to this matter of waiver and correctly charged the jury that the burden of proof rested upon the plaintiff.
For these reasons the appeal of the plaintiff must be dismissed, and it is so ordered.
The defendant appeals from the order granting a new trial as to the furniture on three grounds; first, because in not calling to the trial Court's attention at the conclusion of the charge the errors complained of in the charge the plaintiff waived the right to complain of them thereafter, second, because under the language of the policy lack of ownership of the real estate voided the entire policy, and third, because the order erroneously finds that as to the furniture the question as to the ownership of the real property would have no bearing, the alleged error being that the coverage as to the personal property would be voided by lack of ownership of the real estate.
As to the second and third of these grounds of appeal, I am not of the opinion that the provisions of the policy would bring about a forfeiture of the coverage as to personal property upon the sole ground of lack of ownership of the ground upon which the insured building stood. While it is true that both items of coverage are contained in the same policy, there was no showing of lack of ownership of the personal property, and I think that this differentiation should have been drawn to the attention of the jury.
As to the first ground of appeal, our Courts have drawn a distinction between errors in a charge which consist of misstating the issues or omission to state certain issues, and errors of law. The distinction is close and it is often difficult to determine into which class an error complained of should be placed. In my opinion, in the instant case the failure on the part of the Court to call the jury's attention to the fact that the defense of lack of ownership would not avail against recovery on the furniture was an error of law, and failure on the part of the plaintiff to call the attention of the Court to it at the conclusion of the charge would not constitute such a waiver as would prevent him from complaining of it thereafter.
The appeal of the defendant, therefore, from the order granting a new trial as to the furniture must be dismissed, and it is so ordered.
The case is remanded to the Civil and Criminal Court of Charleston for a new trial solely upon the issue of whether the plaintiff is entitled to recover in the amount of Two Hundred ($200.00) Dollars, the amount of insurance in the policy on the household furniture, and for entry of judgment in favor of the defendant in the matter of the amount of insurance on the dwelling, each party to pay his own costs on the last trial.
Messrs. J.C. Long and Brantly Seymour, for appellant, cite: New trial: 6 Rich., 112; 63 S.C. 462; 150 S.C. 459; 148 S.E., 478. As to burden of proof where forfeiture claimed: 144 S.C. 183; 142 S.E., 348; 102 S.C. 115; 86 S.E., 484; 81 S.C. 131; 61 S.E., 1106; 84 S.C. 117; 65 S.E., 987; 111 S.C. 1; 96 S.E., 620; 146 S.C. 322; 144 S.E., 66; 184 S.C. 158; 191 S.E., 905. Charge: 165 S.C. 367; 163 S. E., 881. Estoppel: 197 S.E., 510.
Mr. Augustine T. Smythe, for respondent, cites: New trial: 115 S.C. 489; 106 S.E., 780; 181 S.C. 406; 187 S.E., 825; 182 S.C. 316; 189 S.E., 356. Error in charge: 165 S.C. 367; 162 S.E., 881; 95 S.C. 302; 78 S.E., 890; 110 S.C. 163; 96 S.E., 250; 116 S.C. 307; 108 S.E., 95; 117 S.C. 391; 109 S.E., 106; 128 S.C. 54; 122 S.E., 403; 134 S.C. 367; 133 S.E., 27; 138 S.C. 124; 135 S.E., 801; 159 S.C. 191; 156 S.E., 357; 168 S.C. 355; 167 S.E., 553; 177 S.C. 479; 181 S.E., 653; 178 S.C. 230; 182 S.E., 432; 197 S.E., 97. As to coverage on furniture avoided for lack of ownership of building: 112 S.C. 151; 98 S.E., 285; 183 S.C. 325; 191 S.E., 71; 133 S.E., 337; 56 S.E., 509; 31 P., 87; 14 R.C.L., 941; 38 Am. Rep., 230; 8 L.R.A., 834; 51 L.R.A. (N.S.), 1051; 2 Ann. Cas., 24; Ann. Cas., 1912-C, 989; 19 L.R.A., 215; 26 C.J., 65; 47 A.L.R., 650; 53 A.L.R., 1123; 131 N.W., 87; L.R.A., 1915-D, 736; 38 Am. Rep., 228; 167 N.E., 473; 68 N.E., 706; 100 A.S.R., 663; 149 N.E., 247; 31 N.E., 279; 16 L.R.A., 174; 34 A.S.R., 565; 29 Am.Rep., 184; 81 Am. Dec., 521; 23 L.R.A., 719; 42 A.S.R., 523; 31 P., 87; 19 L.R.A., 211; 94 Am. Dec., 55; 4 L.R.A., 759; 36 S.E., 821; 52 L.R.A., 70; 78 A.S.R., 216; 51 L.R.A. (N.S.), 1047; Ann. Cas., 1913-C, 1217; 21 N.E., 546; 12 A.S.R., 393; 89 P., 130; 10 L.R.A. (N.S.), 876; 119 A.S.R., 246; 11 Ann. Cas., 801; 105 A.S.R., 157; 57 L.R.A., 328; 93 A.S.R., 261; 72 A.S.R., 878; 14-A, 878; 25 So., 912; 77 A.S.R., 55; 49 Am. Rep., 324; 41 Am. Rep., 842; 8 L.R.A. (N.S.), 839; 56 S.E., 506; 119 A.S.R., 924; 83 S.E., 729; L.R.A., 1915-C, 619; 60 S.E., 118; 125 S.E., 801; 206 F., 984; 150 F., 611; 36 S.E., 821; 89 P., 130; 76 N.W., 734; 33 So., 361; 31 A., 213; 29 S.W. 264; 23 N.E., 883; 56 S.E., 506; 33 A., 439; 78 N.W., 411; 133 P., 1183; 37 S.W. 959; 81 A., 281.
November 14, 1938. The opinion of the Court was delivered by
We have studied the record in this case with painstaking care, giving especial attention to the questions presented by the appeals and the contentions of counsel thereabout. The matter was heard on circuit by his Honor, Judge Lide, who disposed of these several questions to the entire satisfaction of this Court. The reasons given in his decree fully sustain the conclusions reached by him. We find no error as complained of.
The order appealed from, which will be reported, is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.