6 S.D. 335 | S.D. | 1894
This was an action by Anna Drew, as owner, and W. W. McDonald, as mortgagee, to whom the loss was made payable, to recover, under a fire insurance policy, for the value of a building claimed to be insured by said policy and destroyed by fire. Upon a trial before a jury the plaintiff recovered, and the defendant appeals. The company pleaded and relied upon several distinct grounds of defense, only one of ■ which will be particularly noticed.
The policy contained a provision that.the same should be void if the premises so insured should be used or occupied for any unlawful purpose without the consent of the company indorsed thereon. On the trial, H. A. .Patterson, a witness for
No exception to this instruction was taken, and it went to the jury, and controlled them as the law of the case. Under such conditions they could no more disregard the law as given them by the court than they could the evidence as given by the witnesses. Emerson v. Santa Clara Co., 40 Cal. 543. Respondent makes no claim that the law was incorrectly stated by the court, but insists that the charge was correct. Possibly, but upon this point we express no opinion. If the instructions were shown to be wrong in law, and the verdict right upon the evidence, it might stand; but with this evidence before them, and its legal effect fixed as it was by the unchallenged charge of the court, their verdict could not be justified. In his brief, respondent says: “The jury had the right to discredit the witness Patterson and his testimony concerning the sale of intoxicating liquors in the building covered by the policy. It was within the province of the jury to believe or disbelieve this testimony. * * *” This right, conceded, would lack little of making the jury judicially omnipotent, for what the jury may rightfully do the court may not rightfully undo. While courts are, and ought to be; careful not to invade the province or abridge the right of the jury to determine questions of fact, yet