96 Minn. 299 | Minn. | 1905
Respondent held a policy of insurance in appellant company — $500:’ on his barn, $300 on horses (not exceeding $60 per horse), and $50 on. vehicles and other miscellaneous articles contained in the barn. A fire having occurred, this action was brought to recover the amount of the loss. Appellant set up three defenses: That the policy had been canceled; that the fire had been set by the instrumentality of the-insured; that after the barn was set on fire, the insured fraudulently, and contrary to the terms of the policy, failed to make reasonable-exertions to save and protect the property, by reason of which neglect the same was unnecessarily destroyed. At the trial the first defense-was abandoned, and the jury returned a verdict for the respondent.
1. Appellant made no claim at the trial that the property was insured, for more than its value, and objected to evidence to that effect, upon the theory that the insured caused the property to be burned, not for any pecuniary benefit, but as the result of spite work, growing out of trouble with his wife or family. Respectable citizens of the town testified that the wife had made declarations in their presence to the effect, that her husband had made preparation and threats to bum up the premises, and there was some testimony tending to show that the wife-had left the house about midnight a night or two previous to the fire,, and had stated to a neighbor that her husband threatened to burn up-the house; that the husband was up early on the morning of the fire,, and that he did not make reasonable efforts to save the property in the-barn. All this evidence was expressly denied by the insured and his. wife, or explained in such manner as to make it a question for the jury to determine wherein the truth was. Having considered all of the-evidence bearing upon the question of the insured’s guilt in setting fire-to the barn, as -Well as in not making the proper effort to save his property, we find no reason to interfere with the conclusions of the-jury.
2. Appellant called a witness, who had examined the living rooms of the insured immediately after the fire, and asked him to describe their condition, and, the same having been objected to, offered to prove that, the rooms were saturated with kerosene oil. The offer was objected! to, and the ruling sustaining the objection is assigned as error. The trial court took the position that it was proper to prove any statements.
3. Appellant’s third request was not given by the court in exact terms, Tut was, in substance, covered by the general charge, and it was not «error to specifically refuse it.
4. The court charged the jury as follows:
Now upon that issue, fipon that defense, the defendant here has the affirmative, and must satisfy you by a preponderance of the evidence that this plaintiff either directly or indirectly caused the destruction of that building by that fire, in order to entitle it to the defense it has set up. I have so often explained to you what preponderance of evidence is in such cases that I do not deem it necessary to dwell upon it here.
^Exception was taken to this charge, upon the ground that the court •did not inform the jury what it meant by a “preponderance of evidence.” There was no error in this respect, for it must be assumed that the jury understood what the court meant by a preponderance of the evidence, and, if counsel for appellant was not satisfied on that point, it was his duty to call special attention to it, under the rule in Steinbauer v. Stone, 85 Minn. 274, 88 N. W. 784, and Applebee v. Perry, 87 Minn. 242, 91 N. W. 893.
5. The court did not err in charging the jury that if respondent was entitled to recover anything, he was entitled to recover $730 and
Order affirmed.'