Belock v. State Mutual Fire Insurance Co.

• Decision Date: 05 May 1936
• Citation: 185 A. 100,108 Vt. 252
• Parties: CHARLES BELOCK ET AL. v. STATE MUTUAL FIRE INSURANCE CO
• Court: Vermont Supreme Court

185 A. 100

108 Vt. 252

CHARLES BELOCK ET AL. v. STATE MUTUAL FIRE INSURANCE CO

Supreme Court of Vermont

May 5, 1936

February Term, 1936.

Insurance---What Necessary to Justify Interference with Setting Aside of Verdict as against Evidence---Effect of Refusal of Supreme Court to Interfere---Effect on Motion for Directed Verdict at Retrial---Meaning and Application of Law of the Case---Evidence on Retrial Held Not Materially Different---Threats of Third Person, When Admissible---Evidence Necessary to Support Admission---Evidence Held Insufficient---Nature and Effect of Presumption of Innocence---Must Be Overcome by Evidence---Charge Accused Entitled Thereto Throughout Trial Not Necessary---How Sufficiently Charged---Amendment Adding Defense Held Harmless When Issue Not Argued or Submitted.

1. To justify interference on part of Supreme Court with ruling by which verdict has been set aside as contrary to the weight of the evidence, it must appear that the evidence is so strongly in favor of the verdict as to leave no reasonable basis for a contrary verdict.

2. Ruling that record showed no abuse of discretion in action of trial court in granting defendant's motion to set aside verdict as being contrary to the weight of the evidence, is, in effect, a holding that the evidence at the trial afforded a reasonable basis for a defendant's verdict.

3. Ruling on review that verdict for plaintiff was properly set aside as contrary to the weight of the evidence becomes the law of the case as to there being evidence to support a defendant's verdict, and plaintiff is concluded thereby so that his motion for a directed verdict is properly overruled in second trial unless evidence is materially different.

4. A decision in a case by a court of last resort is the law of that case on the points presented throughout all subsequent proceedings therein, and no question then necessarily involved and decided will be reconsidered by the Court in the same case on a state of facts not different in legal effect.

5. In retrial of action to recover on fire insurance policy, where Supreme Court on review of previous trial had held that action of trial court in granting defendant's motion to set aside verdict as contrary to the weight of the evidence was without error, held that there was no material difference in tendency of defendant's evidence at second trial, and plaintiff's motion for a directed verdict was properly overruled.

6. Threats of a third person, other than the person accused of an offense in either a civil or criminal case, against the victim of the crime charged, are inadmissible as being hearsay, res inter alios acta, prejudicial, and misleading but where there is other evidence tending to show that the crime was committed by such third person instead of by the accused, evidence of such threats is admissible as a part of the facts and circumstances which indicate that the person making them is the guilty person rather than the accused.

7. For evidence of threats of a third person to be admissible, the evidence adduced to support such admission must do more than raise a mere suspicion or conjecture; it must constitute proof of such a train of facts and circumstances as tend clearly to point to such person.

8. In action to recover on fire insurance policy, in which plaintiff contended that fire was set by his tenants and defendant, that it was set by plaintiff, evidence that tenants had left premises on day of fire taking keys with them and leaving a part of their utensils, with no offer to show anything further, held in-

sufficient to make admissible offered evidence that plaintiff ordered tenants out for failure to pay rent and that one of them threatened to get back at him.

9. Both in a criminal case and in a civil case where a person is charged with a crime, the presumption of innocence is a piece of evidence in favor of the accused on all material questions in the case and is to be considered by the jury in connection with the other evidence in the case.

10. The presumption of innocence must be overcome by evidence and stands with the accused until so overcome.

11. Failure of court to charge that one accused of crime is entitled to presumption of innocence throughout the trial held not reversible error.

12. In charging the presumption of innocence it is sufficient if the jury is told that it is a piece of evidence to be weighed in favor of the accused and that it stands with him until overcome by evidence.

13. In action to recover on fire insurance policy, where just before the arguments defendant was permitted to amend its defense by adding an affirmative plea that the insured had increased the hazard within his knowledge, and therefore avoided the policy, but where this issue was not argued when plaintiff objected to such argument, and was not submitted to the jury the error, if any, in permitting the amendment, was harmless.

ACTION OF CONTRACT on fire insurance policy. Pleas, general issue and special defense that fire was caused by the fraudulent act of plaintiff Belock, mortgagor, in that he wilfully burned or caused to be burned insured building. Trial by jury at the March Term, 1935, Rutland County, Sherman, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. See, also, 106 Vt. 435, 175 A. 19.

Judgment affirmed.

Marvelle C. Webber and Vernon J. Loveland for the plaintiff.

Fred E. Gleason for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SHERBURNE

This case has been here before and the former opinion, Belock et al. v. State Mutual Fire Ins. Co., 106 Vt. 435, 440-442, 175 A. 19, contains a full statement of the facts, and inasmuch as they were not materially different in the trial now under review, except for a few variances in plaintiff's evidence which we will later note, they need not be here repeated. At the former trial the plaintiff received a verdict which was set aside. At the retrial the verdict was in favor of the defendant, and the case is here upon plaintiff's exceptions. We take up the questions raised in the order briefed.

No question was made about the execution of the policy, or the amount of damages if the plaintiff was entitled to recover, and at the close of all the evidence the plaintiff moved for a directed verdict upon various grounds to the effect that the defendant had not made out any issue to go to the jury upon its plea of fraud. This motion was overruled, subject to exception. The defendant contends that the facts developed at the retrial are substantially similar to those shown at the former trial, and that consequently our former holding is determinative that the motion was properly overruled.

When the case was here before, one of the questions presented was whether the court below had erred in setting aside a verdict in favor of the plaintiff upon the ground that it was contrary to the weight of the evidence. We then said: "We will not disturb a ruling by which a verdict has been set aside, as contrary to the weight of the evidence, merely because the evidence preponderates in its favor; to justify our interference it must appear that the evidence is so strongly in its favor as to leave no reasonable basis for a contrary verdict." 106 Vt. 435, at page 443, 175 A. 19, 22; and held that the record did not show abuse of the court's discretion. This, in effect, was a holding that the evidence at that trial did afford a reasonable basis for a defendant's verdict. That ruling became the law of the case and the plaintiff is concluded thereby, unless the evidence at the retrial was materially different. This principle is clearly stated in Barclay v. Wetmore & Morse Granite Co., 94 Vt. 227, 230, 110 A. 1, 2, as follows: " It is a rule of general application that a decision in a case by a court of last resort is the law of that case on the points presented throughout all the subsequent proceedings therein, and no question then necessarily involved and decided will be reconsidered by the Court in the same case on a state of facts not different in legal effect." See also a review of our cases upon this subject matter in Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 415, 416, 177 A. 631.

The plaintiff has not pointed out any material differences in the tendency of the defendant's evidence, but we have carefully reviewed all the evidence and have found nothing which materially alters the force of the statement in our former opinion. Like any retrial, slight differences must be expected, but such as are disclosed in no way weaken the force of the tendency of defendant's evidence. The motion was properly overruled.

On the morning of the fire, Belock spoke to one of the two Italians who had been occupying the north room of the house for the purpose of brewing beer. They went away that day taking a part of their beer apparatus with them, but leaving behind a three-burner oil stove and some other articles, such as a large tank and three or four beer cases and kegs. In their operations they had used the hall of the house for storage of beer cases and kegs, also the north end of the cellar, to which they had access by a stairway from the hall. In gaining access to their room they had used a back door which opened toward the horse barn, the building which burned. When they went away they retained their keys. It did not appear whether they planned to return for the articles they had left. For further details as to the tendency of plaintiff's evidence see the former opinion. It was the contention of the plaintiff that the Italians burned the barn and attempted to burn the house. With the evidence standing as we have indicated, the plaintiff offered to show that as...