Aetna Ins. Co. of Hartford, Conn. v. Taylor, 8051
| Decision Date | 12 December 1936 |
| Docket Number | 8052.,No. 8051,8051 |
| Citation | 86 F.2d 225 |
| Parties | ÆTNA INS. CO. OF HARTFORD, CONN., v. TAYLOR. FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK v. SAME. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. W. Clapp and Hugh MacMillan, both of Atlanta, Ga., for appellants.
Chas. S. Reid and Sidney Holderness, Jr., both of Atlanta, Ga., and S. Holderness, Sr., of Carrollton, Ga., for appellee.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
These cases were consolidated for the purpose of trial in the court below; by stipulation of the parties and by order of court, they have been submitted here on a single record, and will be disposed of in one opinion. Separate verdicts and judgments were rendered against the appellants, the suits being based on policies of insurance against loss by fire on a stock of merchandise, consisting chiefly of dry goods, shoes, hats, and groceries.
The issue on the trial was whether the insured had complied with warranties in the policy to take inventories and keep a set of books which would present a complete record of the business transacted, including all purchases and sales, both for cash and on credit. In the event of failure to produce such books and inventories for the inspection of the company, there was a provision that the policy should become null and void, and that such failure should constitute a perpetual bar to any recovery thereon. The entire policy was, also, to become void if the insured concealed or misrepresented any material fact concerning it or the subject thereof; or in case of any fraud or false swearing by the insured, touching any matter relating to the insurance, whether before or after the loss.
The appellants specially pleaded in bar of recovery breaches of the several warranties and conditions, and alleged that all rights of appellee under the contract of insurance had been forfeited by his failure to produce such records upon demand, and by his fraud and false swearing in overvaluing his merchandise in his proof of loss and during the trial. Among other assignments, it is insisted that the court erred in giving the following instruction to the jury: "On the other hand, the burden is on the defendants, in the same way, to sustain their special defenses, such as the alleged breaches of the conditions of the policies, as is claimed on this case, and in the same way the rules of proof apply with respect to those special defenses as I have instructed you is on the plaintiff as to his general right to recover."
Defendants excepted to this charge on the ground that, where the iron safe clause is pleaded as a defense, the burden of showing compliance therewith is upon the plaintiff; but, in the outset of its charge, the court instructed the jury that the burden of proof was on the plaintiff to show his right to recover by "affirmative proof" and "by a preponderance of the evidence." Continuing, the court said: Next came that part of the charge (first above quoted) which stated the burden was on the appellants to sustain their special defenses with reference to alleged breaches of conditions in the policies.
The indiscriminate use of the phrase, "burden of proof," is frequently the cause of confusion, but in this case any apparent contradiction in the above instructions may be reconciled by bearing in mind the distinction between the burden of proving an...
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