Charles Belock v. State Mutual Fire Insurance Co.

• Decision Date: 02 October 1934
• Citation: 175 A. 19,106 Vt. 435
• Parties: CHARLES BELOCK ET AL. v. STATE MUTUAL FIRE INSURANCE COMPANY
• Court: Vermont Supreme Court

175 A. 19

106 Vt. 435

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

Supreme Court of Vermont

October 2, 1934

May Term, 1934.

Fire Insurance---Defense of Wilful Burning of Insured Building by Mortgagor as Available against both Mortgagor and Mortgagee---Burden of Proof of Defense of Wilful Burning of Insured Building---Motion To Set Aside Verdict as Against or Contrary to Evidence as Addressed to Trial Court's Discretion---Motion To Set Aside Verdict as Not Supported by Evidence as Involving Law Question and Subject to Review---New Trial---When Motion To Set Aside Verdict as Not Having Evidence To Support It Should Not Be Granted and View of Evidence To Be Taken on Such Motion---Presumption in Favor of Lower Court's Ruling on Motion To Set Aside Verdict---Action of Court Precluding Indulgence in Presumption That Court Acted in Its Discretion in Setting Aside Verdict as Contrary to Evidence---Jury Question---Denial of Defendant's Motion for Directed Verdict as Not Precluding Court from Setting Aside Plaintiff's Verdict as Contrary to Evidence---Weight of Evidence Not Matter for Supreme Court on Review of Ruling of Trial Court on Motion To Set Aside Verdict, unless Abuse of Discretion Shown---"Difference in Judicial Opinion" as Not Synonymous with "Abuse of Judicial Discretion"---What Must Appear To Justify Supreme Court in Reversing Trial Court's Ruling on Motion To Set Aside Verdict as Contrary To Evidence---Supreme Court Must Indulge Every Reasonable Presumption in Favor of Lower Court's Ruling on Motion To Set Aside Verdict as Contrary To Evidence---Admissibility and Effect of Circumstantial Evidence To Establish That Insured Caused Insured Buildings To Be Burned---Presumption of Innocence as Available To Mortgagor on Issue Whether He Burned Insured Buildings---Presumption That Trial Court Exercised Its Discretion---Sufficiency as to Mortgagor's Connection with Burning of Insured Buildings To Show That Trial Court Did Not Abuse Its Discretion in Setting Aside Verdict for Insured.

1. In ACTION OF CONTRACT on fire insurance policy, defense that fire was caused by fraudulent act of mortgagor in that he willfully burned or caused to be burned insured building held available both against mortgagor and mortgagee, loss being payable to latter as his interest might appear.

2. In such action, burden of proving defense that mortgagor wilfully burned or caused to be burned insured building was on defendant.

3. Motion to set aside verdict as against or contrary to evidence is addressed to discretion of trial court, and its action thereon is not revisable unless it appears that there has been an abuse or withholding of discretion.

4. Motion to set aside verdict because there is no evidence to support it presents question of law, which is subject to review.

5. Motion to set aside verdict on ground that there is no evidence to support it cannot properly be granted if there is evidence fairly and reasonably tending to justify verdict and evidence must be taken in most favorable light for prevailing party.

6. If affirmative ruling on motion to set aside verdict can be sustained upon any of several grounds specified in motion judgment must be affirmed.

7. On review of affirmative ruling of lower court on motion to set aside verdict, containing among others ground involving court's discretion, Supreme Court, if nothing appears to contrary, will assume that lower court acted solely as matter of discretion, but where lower court specifically based its ruling on three different grounds including lack of supporting evidence, such presumption cannot be indulged.

8. In ACTION OF CONTRACT on fire insurance policy, where defense was that fire was caused by fraudulent act of mortgagor, in that he wilfully burned or caused to be burned insured building, evidence on question whether mortgagor was guilty of such act held for jury, so that granting of motion to set aside verdict for plaintiff on ground of lack of supporting evidence was error.

9. Denial of defendant's motion for directed verdict does not preclude court from setting aside verdict as contrary to evidence in exercise of court's discretion.

10. That there is some evidence tending to support verdict, does not prevent court from exercise of discretion in setting verdict aside.

11. In review of action of trial court in setting aside plaintiffs' verdict as contrary to evidence, as to plaintiffs' claim that defendant's evidence could not be said to preponderate, Supreme Court may not say where weight of evidence lies, unless so clearly manifested that to hold otherwise would constitute abuse of trial court's discretion.

12. In review of action of trial court in setting aside plaintiffs' verdict as contrary to evidence, "difference in judicial opinion" is not synonymous with "abuse of judicial discretion."

13. Supreme Court will not disturb ruling by which verdict has been set aside as contrary to weight of evidence merely because evidence preponderates in its favor, but to justify interference it must appear that evidence is so strongly in its favor as to leave no reasonable basis for contrary verdict.

14. Supreme Court is bound to indulge every reasonable presumption in favor of ruling of lower court in setting aside verdict as contrary to evidence.

15. In ACTION OF CONTRACT on fire insurance policy, where defense was that mortgagor wilfully burned or caused to be burned insured building, circumstantial evidence was admissible to establish fact in issue, and, if sufficiently persuasive, might establish such fact.

16. In such action, on issue whether mortgagor wilfully burned or caused to be burned insured building, there is no presumption of wrongdoing, but, on contrary, he is presumed to be innocent.

17. Supreme Court must presume that trial court exercised its discretion as required by law in setting aside verdict as contrary to evidence.

18. In ACTION OF CONTRACT on fire insurance policy, where defense was that mortgagor wilfully burned or caused to be burned insured building, evidence held to show that trial court did not abuse its discretion in setting aside verdict as contrary to evidence.

ACTION OF CONTRACT on fire insurance policy. Pleas, general denial 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 September Term, 1933, Rutland County, Bicknell, J., presiding. Defendant's motion for a directed verdict overruled. The defendant excepted. Verdict for the plaintiffs. Before judgment, defendant moved to set aside verdict, and such motion was granted. The plaintiff's excepted. The opinion states the case.

Judgment affirmed, and cause remanded.

Marvelle C. Webber, Vernon J. Loveland, and Christopher A. Webber for the plaintiffs.

Fred E. Gleason for the defendant.

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

OPINION

MOULTON

This is an action of contract upon a policy of fire insurance covering certain property owned by the plaintiff Belock and mortgaged to the plaintiff Crampton, the loss being payable to the latter as his interest might appear. The plea is that the fire was caused by the fraudulent act of Belock, in that he wilfully burned or caused to be burned the insured building. This defense was available as against both Belock, the mortgagor, and Crampton, the mortgagee (Girard v. Vermont Mutual Fire Insurance Co., 103 Vt. 330, 334, 154 A. 666), but the burden of proving it was upon the defendant. Cummings v. Connecticut General Life Insurance Company, 101 Vt. 73, 85, 142 A. 82. The defendant moved for a directed verdict, but the motion was denied, subject to its exception. The jury returned a verdict for the plaintiffs, which the court, on de- fendant's motion, set aside. Both plaintiffs and defendant have filed bills of exceptions, and there are two questions for determination: (1) Whether the court erred in setting the verdict aside, and (2) whether the court erred in overruling the motion for a directed verdict.

The motion to set aside was based upon five gounds, but the trial court granted it upon the first, second and fifth grounds, which were as follows: (1) For that the said verdict was contrary to any reasonable inference from all the evidence that the plaintiff Belock did not burn or cause to be burned the property for the insurance on which the plaintiffs seek to recover; (2) for that the verdict is contrary to the evidence, and not warranted thereby or by any reasonable inference to be drawn therefrom; (5) for that from the evidence and all reasonable inferences to be drawn therefrom there was nothing upon which reasonable men could differ and that the defendant was entitled to a verdict.

The distinction between a motion to set a verdict aside as against the evidence, and one based upon the ground that there is no supporting evidence is stated in French v. Wheldon, 91 Vt. 64, 69, 99 A. 232. In the former case, the motion is addressed to the discretion of the trial court, and its action thereon is not revisable unless it appears that there has been an abuse or withholding of discretion. Butler v. Favereau, 105 Vt 382, 383, 166 A. 1; Sargent v. Robertson, 104 Vt. 412, 420, 160 A. 182; Porter v. Fleming, 104 Vt. 76, 82, 156 A. 903; Robinson v. Leonard, 100 Vt. 1, 11, 134 A. 706; Temple et ux. v. Atwood, 99 Vt. 434, 435, 134 A. 591; Sharby v. Town of Fletcher, 98 Vt. 273, 281, 127 A. 300. The rule is the same where the ground for the motion is that the verdict is contrary to the evidence, Butler v. Favereau, supra; Paska et al. v. Saunders et al., 103 Vt. 204, 217, 153 A. 451; Daniels v. Preston, 102 Vt. 337, 339, 148 A. 285; Temple et ux. v....