Chandler v. Commerce Fire Insurance

88 Pa. 223 | Pa. | 1879

Mr. Justice Skarswood

delivered the opinion of the court, January 6th 1879.

The several reservations in this case were contrary to a well-settled rule on that subject. They were without exception of the sufficiency of the evidence. Whether there is any evidence of a fact which ought to be submitted to the jury is a question of law which may be reserved; but whether the evidence is sufficient is a question of fact which cannot be reserved: Wilde v. Trainor, 9 P. F. Smith 439. The first specification of error is to the judgment of the court below upon the reservation of the defendants’ second point, which was substantially the same as the eighth point and fifth specification, whether there was sufficient evidence that the premises wmre vacant and unoccupied at the time of the fire. Though the jury found for the plaintiff, judgment for the defendants was entered non obstante veredicto. The plaintiff testified, “ my son was occupying it, keeping bachelor’s hall.” The son testified that he occupied the house after his father moved, but was not at home the night of the fire. There were indeed two witnesses examined on the part of the defendants, who said that they saw no signs,of life about the house for several weeks before the fire. Here was certainly a question of fact for the jury, something more than a scintilla, and the court had no right to withdraw the case from that tribunal by such a reservation. An occasional absence for a single night, even though it, should so chance as to be the night of the fire, would certainly not make it a vacant or unoccupied house.

The second specification of error is to the judgment upon the defendants’ fourth point reserved, which was in substance the same as the fifth, complained of in the third specification. The judgment denies the plaintiff’s right to recover on the ground of want of title under the terms of the policy. If the court meant to hold broadly that because the interest of the plaintiff was equitable, subject to the payment of a balance of purchase-money, it was not the entire, unconditional and sole ownership of the property, it was an error, as has just been decided in the Insurance Company v. Wilgus, ante 107. There was in this policy, as in those cases, no condition requiring a disclosure of encumbrances. But if it was meant to decide that the assignment of the Chase contract by the plaintiff to Berry deprived him of such ownership, it was equally wrong. The declaration of Berry as to that assignment was in evidence, in writing, and made it a mortgage merely, held as collateral security for a debt then owing to him and for further advances, and the power of sale did not change its character. The provision of the policy is, “ When property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on such property shall immediately terminate.” It is clear then, we think, that the judgment for defendants on these two points, non obstante veredicto, was wrong.

The fourth specification of error is to the judgment on the reservation of the defendants’ seventh point. This is based upon the alleged insufficiency of the account of the loss furnished by the plaintiff to the defendants. The property insured was a two-and-a-half story frame dwelling-house. The account of loss was that the property insured was totally destroyed by the fire. It is not easy to see how the account under the circumstances could have been more particular. At all events, it was prima facie sufficient. If the schedules and papers annexed to the affidavit were insufficient, it was incumbent on the defendants to produce them. The same question was raised by the answer to the ninth point of the defendants, upon which there was a similar reservation and judgment.

Judgment reversed, and venire facias de novo awarded.

On January 29th 1879, Thomas Hart, Jr., Esq., obtained a rule to show cause why the above judgment, to wit, “Judgment reversed and venire facias de novo awarded,” should not be modified so as to be “Judgment reversed, and now, February 1879, judgment is entered for the plaintiff in error, and below upon the verdict.”

On February 8th 1879, the rule was argued by Thomas Hart, Jr., and O. B. Guthrie, for plaintiff, who contended that where a verdict was rendered in favor of plaintiff subject to the opinion of the court on a point reserved on which the court afterwards entered judgment for the defendant, the Supreme Court in reversing the judgment, may enter judgment for the plaintiff, and cited the following authorities: Klett v. Claridge, 7 Casey 106; Swearingen v. Pendleton, 4 S. & R. 396; Harper v. Keely, 5 Harris 234; Savage v. Everman, 20 P. F. Smith 315; Stephens v. Cowan, 6 Watts 511.

George Biddle, for defendant.

On February 10th 1879, the Supreme Court made the rule absolute.