Hanover Fire Ins. Co v. Pruitt Et At
| Decision Date | 07 March 1939 |
| Docket Number | No. 27161.,27161. |
| Citation | 2 S.E.2d. 123 |
| Parties | HANOVER FIRE INS. CO. v. PRUITT et at. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 29, 1939.
1. "The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose cause or defense the proof of such fact is essential." The burden of proof as to the establishment of the facts alleged in his petition was at all times upon the plaintiff. The burden of establishing an affirmative defense was upon the defendant. The jury was authorized under the facts of the present case to And that plaintiff had carried the burden resting on it and that the defendant had failed to carry the burden of its affirmative defense.
2. The remaining assignments of error are not sufficient to require a reversal of this case. The Court did not err in overruling the motion for new trial.
Error from Superior Court, Hall County; B. P. Gaillard, Jr., Judge.
Suit by Mrs. J. C. Pruitt and others against the Hanover Fire Insurance Company on fire policy. To review an adverse judgment, the defendant brings error.
Affirmed.
Harllee Branch, Jr., Dudley Cook, and MacDougald, Troutman & Arkwright, all of Atlanta, W. P. Whelchel and G. Fred Kelley, both of Gainesville, for plaintiff in error.
Joseph H. Blackshear, Chas. J. Thurmond, Boyd Sloan, and Wheeler & Ken-yon, all of Gainesville, and Little, Powell, Reid & Goldstein and B. D. Murphy, all of Atlanta, for defendants in error.
This is a suit on a fire insurance policy because of the destruction by fire of a certain stock of goods covered by the policy sued on. The petition alleged that the policy was in force, attached a copy of it to the petition, alleged the destruction of the stock of goods covered by the policy because of fire and the submission of proofs of loss and the failure to pay. The defendant admitted that it issued the policy sued on and says said policy contained this provision: "If a building or any part thereof fall, except as a result of fire, all insurance by this policy shall immediately cease, " and that "about 8:40 o'clock on the morning of April 6, 1936 and prior to the occurrence of any fire on the premises described in said policy, a tornado or violent windstorm occurred at or about said premises, which said tornado or windstorm then and there immediately caused a part of the building described in said policy to fall." "Defendant avers that the falling of said building or a part thereof occurred prior to the fire alleged to have occurred in plaintiff's petition."
We shall not go into any detailed description of the evidence with reference to the frightful tornado which struck Gainesville' Georgia, that day. It disclosed without dispute that the stock of goods insured was located in a four story brick building; that during the progress of the tornado the building was demolished and was immediately on fire and the remains were destroyed by fire. The main question which was for determination of the jury was whether the fire started before the building fell or whether after it fell. Under the decision of this court in an identical contract it is held that if the fire began after the fall of the building there could be no recovery on the policy. Nalley v. Hanover Fire Insurance Co., 56 Ga.App. 555(1), 193 S.E. 619.
We think it is also well settled that if the fire started before the fall of the building but the destruction was not complete before the fall a recovery may be had. If the fire after the fall was the continuation of the fire in progress before the building fell a recovery may be had on the policy. See Hartford Fire Ins. Co. v. Doll, 7 Cir., 23 F.2d 443, and cases cited in note to that case in 56 A.L.R. 1059. A careful reading of the very voluminous brief of the evidence without recounting it convinces us that the circumstances detailed did not preponderate to such an extent as to demand a finding either that the fire began before or after the building was demolished. The plaintiff in error, defendant in the court below, says in its brief: "The plaintiff's theory was thatthere was a strong wind prior to the tornado, which blew out the plate glass windows, and this strong wind blew down the [red hot] stove pipes and overturned the stove located on the first floor (of the four story building) spreading the fire to the stock of merchandise prior to the collapse of the building." It is contended that there was no evidence to support this theory except the fact "that there was a strong wind which blew out the front plate glass of the plaintiff's windows some few seconds before the tornado struck." It is further contended that the plaintiff in the court below insisted that it could be inferred from this circumstantial evidence that this wind was strong enough to overturn the stove and thus spread the fire to the stock of goods before the tornado demolished the building.
Plaintiff in error says first in its brief, "There was no evidence to support the verdict for the plaintiffs and a finding that plaintiffs' stock of goods caught fire prior to the falling of a material portion of plaintiffs' building." Did the burden rest upon the plaintiff to show this fact or was the burden on the defendant to show the converse, that is, that the building did not catch on fire until after it fell? An answer to this question decides this feature of the case.
In the present case, it is undisputed that there was a valid policy in effect insuring plaintiffs' stock of goods against loss by fire. It is also undisputed that plaintiffs' insured property was destroyed by fire. The condition in the policy that no liability under the policy was to exist in the event the building fell before the fire was a condition subsequent. Morris v. Imperial Ins. Co., 106 Ga. 461(1), 32 S.E. 595; American Ins. Co. v. I. F. Peebles & Co., 5 Ga. App. 731(2), 64 S.E. 304; Gate City Fire Ins. Co. v. Thornton, 5 Ga.App. 585, 63 S.E. 638; Western Assurance. Co. v. J. H. Mohlman Co., 2 Cir, 83 F. 811, 40 L.R.A. 561; Phenix Ins. Co. v. Luce, 6 Cir., 123 F. 257; Rossini v. St. Paul F. & M. Ins. Co., 182 Cal.
415, 188 P. 564; Fountain v. Conn. Fire Ins. Co., Cal.App., 117 P. 630; Transatlantic Fire Ins. Co. v. Bamberger, 11 S.W. 595, 11 Ky.Law Rep. 101; N. & M. Friedman Co. v. Atlas Assurance Co., 133 Mich. 212, 94 N.W. 757; Wiig v. Girard F. & M. Ins. Co., 100 Neb. 271, 159 N.W.
416, L.R.A.1917F, 1061; Keistler Co. v. Aetna Ins. Co., 124 S.C. 32, 117 S.E. 70; London & L. Ins. Co. v. Crunk, 91 Tenn. 376, 23 S.W. 140. It is a condition subsequent, analogous to a provision that the policy is void if the title to the building or property insured be not in the plaintiff. In Morris v. Imperial Ins. Co., supra, it was said: "Where, to a suit upon a policy of fire insurance, the defense is interposed that at the time the policy was taken out by the insured he was not the owner of the property thereby covered, the burden of satisfactorily establishing this contention rests upon the defendant, notwithstanding it may be incumbent upon the plaintiff, in order to make out a prima facie case, to show that the property in question, alleged to have been destroyed by fire, belonged to him at the time the same was burned." See also American Ins. Co. v. I. F. Peebles & Co., 5 Ga.App. 731, 64 S.E. 304; Gate City Fire Ins. Co. v. Thornton, 5 Ga.App. 585(2), 63 S.E. 638. "Again, a stipulation that 'in case of the fall of the building, all insurance by this policy shall immediately cease' is a condition subsequent and not an exception, and the burden of showing that it became operative before loss is upon the insurer, especially where it is not in the descriptive part of the policy, but is among the provisos." Couch, Encyc. Insurance Law, § 2246. It is said further in the same section: "In other words when the plaintiff has made out a prima facie case, the defendant has the burden of proving a defense thereto."
We think the plaintiff made out a prima facie case when it introduced the policy sued on, which on its face in effect showed a loss by fire, the amount of the loss and proper demand and refusal. This proof fully measured up to the allegations contained in the petition and nothing else appearing would have entitled the plaintiff to a verdict. The defendant pleaded a breach of a condition subsequent, the question therefore for determination is not whether the plaintiff has shown that the fire began before the building fell, but whether or not the defendant has established that the building fell before the fire began. The burden or the duty of going forward with the evidence was upon the defendant to show the breach of this condition subsequent, just as would have been his duty in case his plea had been that title to the building was not in plaintiff at the time of the issuance of the policy or that it was vacantat the time of the fire, or that the risk had been increased by hazard named in the policy, or that there was other insurance on the same property. The defendant has the burden of proving an affirmative defense, to wit, that the building fell before it caught on fire. We are not able to say that the evidence "conclusively shows that the collapse of the building, caused by the tornado, preceded the fire." As was said by this court in Georgia Ry. & El. Co. v. Harris, 1 Ga.App. 714, 57 S.E. 1076: "Where a plaintiff in a civil case supports his action solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied upon, and to preponderate to that theory rather than to any other reasonable hypothesis." See also Bentley v. Southern Ry. Co., 52 Ga. App. 188 (2), 182 S.E. 815.
When the plaintiff had introduced his evidence in this case, unless such evidence itself established the fact that the building fell before the fire started, he would be entitled to a verdict. We do not...
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