Blackburn Et Ux v. St. Paul Fire & Marine Ins. Co

• Citation: 116 N.C. 821,21 S.E. 922
• Court: United States State Supreme Court of North Carolina
• Decision Date: 14 May 1895
• Parties: BLACKBURN et ux. v. ST. PAUL FIRE & MARINE INS. CO.

21 S.E. 922

116 N.C. 821

BLACKBURN et ux.

v.ST. PAUL FIRE & MARINE INS. CO.

Supreme Court of North Carolina.

May 14, 1895.

Fire Insurance—Assignment of Policy—Estoppel — Fraudulent Burning — Sufficiency of Evidence — Exception to Charge — Time of Taking.

1. A defense to an action on a fire policy that the property was fraudulently burned by insured must be proved by a preponderance of evidence only, not beyond a reasonable doubt.

2. An exception to a charge, if made in the statement of case on appeal, is in time.

3. An assignment of a fire policy to one having no interest in the property is valid where made on the assent of the insurer, procured without false representations or suppression of facts.

Appeal from superior court, Buncombe county; McIver, Judge.

Action by W. A. Blackburn and wife against the St. Paul Fire & Marine Insurance Company on a fire policy. Judgment for plaintiffs. Defendants appeal. Reversed in part

M. E. Carter and Fry & Newby, for appellants.

J. H. Merrimon, C. M. Stedman, and Moore & Moore, for appellees.

CLARK, J. The consolidation of the live actions upon concurrent policies of insurance on the same property was consented to, hut, if it had not been, the judge had authority to so order, as there might properly have been only one action brought. Pretzfelder v. Insurance Co. (at this term) 21 S. E. 302.

The charge of the court upon the eighth and ninth issues is not entirely clear, but it in effect amounts to an instruction that the defendants must show the conspiracy between the plaintiffs to burn, and also the burning by W. A. Blackburn, "beyond a reasonable doubt"; for the court instructed the jury that there was a presumption of innocence, and that they must find "that there was no reasonable hypothesis consistent with the innocence of the plaintiffs, " and that it is not sufficient "that the facts and circumstances relied upon to establish the truth of the charge are consistent with it; they must be inconsistent with his innocence." This is not the correct rule in civil actions, which have nothing to do with guilt and innocence. The burden was upon the defendants as to these two issues to prove their allegations by the preponderance of the evidence, but not beyond a reasonable doubt. It is true the authorities in other states are conflicting, but this is the general rule in civil actions, and our courts have seen no reason to depart from it. Kincade v. Bradshaw, 10 N. C. 63; Barfield v. Britt, 47 N. C. 41; Outlaw v. Hurdle, 46 N. C. 150. Both reason and the weight of authority, especially the later cases, sustain the proposition that "in an action on a policy of insurance against fire, when the defendant pleads that the property was fraudulently burned by the plaintiff, the defendant is not bound to prove such defense beyond a reasonable doubt." Blaeser v. Insurance Co., 19 Am. Rep. 747; Elliott v. Van Buren, 20 Am. Rep. 668; Jones v. Greaves, Id. 752; Insurance Co. v. Johnson, 21 Am. Rep. 223; Kane v. Insurance Co., 23 Am. Rep. 239, citing Steph. Ev. p. 115, art. 94; Insurance Co. v. Berry, 8 Kan. 159; Munson v. Atwood, 30 Conn. 102; Wightman v. Insurance Co., 8 Rob. (La.) 442; Marshall v. Insurance Co., 43 Mo. 586; Rothschild v. Insurance Co., 62 Mo. 356; Huchberger v. Insurance Co., 4 Biss. 265, Fed. Cas. No. 6, 822; Sibley v. Insurance Co., 9 Biss. 31, Fed. Cas. No. 12, 830; Insurance Co. v. Usaw, 112 Pa. St. 80, 4 Atl. 355; Insurance Co. v. Jachnichen, 110 Ind. 59, 10 N. E. 636; Mack v. Insurance Co., 4 Fed. 59; Scott v. Insurance Co., 1 Dill. 105, Fed. Cas. No. 12, 533 (by Dillon, J.); Schmidt v. Insurance Co., 1 Gray, 529; Ellis v. Buzzell, 60 Me. 209; Insurance Co. v. Wilson, 7 Wis. 169; Matthews v. Huntley, 9 N. H. 150; Simmons v. Insurance Co.. 8 W. Va. 474; 1 Greenl. Ev. § 13a, note; 2 Greenl. Ev. § 408, note b; Whart. Ev. § 1246; 1 May, Ins. § 583; Bid. Ins. 443; Wood, Ins. § 101.

The defendants took no exception to the charge at the time, but, in making out their statement of case on appeal, they specifically excepted to the charge in this particular. This is in sufficient time for exceptions to the charge, though not as to any other matters. Lowe v. Elliott, 107 N. C. 718, 12 S. E. 383, and other cases cited in Clark's Code (2d Ed.) p. 383, and Tillett v. Railroad Co. (at this term) 21 S. E. 698.

If the assignment of the policy by Cynthia A. Blackburn was defective because her husband did not join therein, she and her husband being parties to the action, the defendants cannot complain. But, taking the assignment as sufficient as to its execution, the defendants are estopped; for, through their agents, they assented to the assignment being made, and there is neither allegation nor proof that there was any suppression of the...