91 Tenn. 376 | Tenn. | 1892
The defendant in error brought this suit against The London and Lancashire Eire Insurance Company to recover for loss sustained by fire, which destroyed his buildings, insured by said company.
The policy contained a clause providing that, “if the building or any part thereof fall except as the result of fire, all insurance by this . policy on such building or its contents shall immediately cease.”
There was no averment in the declaration that
Pleas were filed denying liability, and the* case was tried on the merits, resulting in a verdict and judgment in favor of plaintiff for $1,828.75; and defendant appealed, and assigned errors of fact and law.
Before proceeding to consider such of these as are deemed material for consideration, we notice an objection of defendant in error that plaintiff' cannot avail himself of objections assigned, because thbre were no proper motions made below for a new trial and in arrest of judgment, the entry of record on that subject being that “the defendant moved the Court for a new trial and in arrest of judgment, which motion was by' the Coui't overruled,” and the point made on it here that this was but one motion, and that a motion for a new trial could not have been entertained at the same time with a motion in arrest, and that a motion in arrest, thus made, waives a motion for a new trial, citing Snapp v. Moore, 2 Overton, 236, where this position was taken arguendo, but doubtless correctly by Judge Overton, delivering the opinion of the Court.
But in the view we take of it, this is immaterial. It would only affect the right of defendant to object here,, as plaintiff in error, that the evidence did not sustain the verdict, because, as to
And as there was evidence before the jury to sustain the verdict, it does not matter whether plaintiff in error could not now make the question, because, if he could it would be ineffectual, as the verdict would not be disturbed upon the facts.
Passing this, therefore, we proceed to questions made and deemed essential to be noticed.
The first alleged error is the action of the Circuit Judge on the demurrer.
The declaration • was not defective for want of averment omitted. It is not necessary that it should have averred the performance or non-performance of conditions subsequent; nor to have negatived prohibited acts or excepted risks. May on Ins., Sec. 590.
The second and last error we notice here (though all others assigned have -been considered and disposed of. in consultation of the Court), is as to charge of the Court upon construction and effect of this provision of the policy.
Before the fire destroyed the insured building, it .had been visited by a cyclone. It was a two-story building, with a portico in front, and what is designated as an “ell” addition in the rear. This was one story. The roof of the two front upper rooms had been blown away, the rafters, ceiling, and parts of walls remaining.
But there was evidence tending to show that
The defendant company insisted, however, that the evidence showed that the fire commenced after the roof, etc., were blown away, and there was evidence tending to show this. It also insisted that a window or window-light was first blown out, and through this the air-current had been admitted, which blew fire out into the room, if any was so blown; and hence, a part of the building had fallen before the fire, and the policy ceased, by its terms, before the fire started.
The question thus presented, upon facts and proper construction of the policy, is made in objection to the charge of the Court, which, on this point, was as follows: “The exclusion clause in question is not to be literally understood so as to avoid the policy if an atom or some minute portion of the material in the insured building should fall. It means some functional portion of the structure, the falling of which would destroy its distinctive character.as such. So that, if the proof
Defendant in error objects to this upon several grounds:
First. — That it is law only in case of a contract where the condition is as to the “ falling of the building ” entire.
This is an erroneous view. The Circuit Judge
Second. — It is next objected to this, that after construing this clause, the Circuit Judge told the jury that if the roof was blown from “one of the rooms,” etc., this would not be a falling of any part within the meaning of the policy, and that this was erroneous, because, first, it limited the facts to the blowing off of the roof of one room, whereas, the roof of two was blown off, etc.
This was error in defendant’s favor. It left the jury to infer that if the roof was blown from two rooms, or more damage was done, it might be such
Again, it is said this was an invasion of the right of the jury to determine as a fact what part of the building falling might be within the clause.
This objection is not well taken. The Judge tells the jury what construction the contract must have, and illustrates by stating such a condition as would not be within his meaning or definition or construction. If his construction was right, he was right in eliminating, by statement, such a blowing off of the building as would or would not be within it. It is not telling the jury on a controverted question what the facts were or how to find them; it is a statement, to them that certain facts, being true or proven, will not bring the case thus proven or assumed within the construction the Court gives the contract.
On the whole case, we are satisfied with- the judgment, and it is affirmed with cost.