60 Ga. App. 57 | Ga. Ct. App. | 1939
This was a suit by Shiver & Barnett, a partnership composed of E. L. Shiver and H. M. Barnett, on a fire-insurance policy. Shiver & Barnett operated a furniture store in Colquitt, Georgia, which was destroyed by fire about 11:30, at night, on September 3, 1935. Among other defenses interposed by defendant was that the building was set on fire by one of the plaintiffs, H. M. Barnett. The proofs of loss as first submitted alleged that the value of the stock of goods was $7500. It was later amended and the value claimed was $3560. The stock of goods was covered by insurance in the sum of $5000. These proofs of loss were signed by both partners. Barnett alone appeared as a witness, although the other claimant, Shiver, was also present at the trial. A great deal of the testimony was in reference to the reasons for the filing of claims stating a value of $7500 at one time and $3560 at another. The jury returned a verdict in favor of the defendant. Counsel for the plaintiffs say that the sole question involved in this case is whether or not the court erred in giving to the jury a charge as follows: “Where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted.” Code, § 38-119. We do not think this assignment of error well
Shiver was a party plaintiff; he was present at the trial. It was presumably within his knowledge as to the amount and character of the goods on which he obtained the insurance. If not, the reasons therefor were within his knowledge. He filed proof of loss at different times for different amounts. Barnett attempted to explain, but Shiver was silent. Although the evidence fails to show that Shiver was a material witness as to the events leading up to and surrounding the actual burning of the stock of goods, he did know in reference to the amount of the stock at the time and the reason why diverse proofs of loss were submitted, together with the total amount of insurance carried; and these were facts and circumstances which formed a part of the chain showing the alleged motive for the burning. While it is true that this principle is not applicable to criminal cases (Whitley v. State, 14 Ga. App. 577 (5), 81 S. E. 797; Jones v. State, 14 Ga. App. 811, 82 S. E. 470), and would not have been applicable had the defendant Barnett been tried for arson, it is true that in civil cases it may be a duty on the part of either party to the cause, where he has evidence in his power and within his reach by which he may repel a claim or charge against him, to produce it or suffer the presumption that the charge or claim is well founded. This rule applies irrespective of the burden of proof. The failure so to produce may give rise to the suggestion or presumption of evasion or concealment. See Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 29 (174 S. E. 708).
Judgment affirmed on the main bill of exceptions. Cross-bill dismissed.
