London & L. Fire Ins. Co. v. Crunk

• Decision Date: 19 March 1892
• Citation: 23 S.W. 140
• Parties: LONDON & L. FIRE INS. CO. v. CRUNK.
• Court: Tennessee Supreme Court

23 S.W. 140

LONDON & L. FIRE INS. CO. v. CRUNK.

Supreme Court of Tennessee.

March 19, 1892.

Error from circuit court, Lincoln county; M. D. Smallman, Judge.

Action by Crunk against the London & Lancashire Fire Insurance Company on a fire insurance policy. From a judgment for plaintiff, defendant appeals in error. Affirmed.

W. B. Lamb and J. D. Tillman, for plaintiff in error. J. H. Holman & Carter, for defendant in error.

SNODGRASS, J.

The defendant in error brought this suit against the London & Lancashire Fire Insurance Company to recover for loss sustained by fire, which destroyed his buildings, insured by said company. The policy contained a clause providing that, "if the building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease." There was no averment in the declaration that the building insured, and no part thereof, fell, except as the result of fire, and the defendant demurred because of the failure of plaintiff to make such averment. The demurrer was overruled. Pleas were filed denying liability, and the case was tried on the merits, resulting in a verdict and judgment in favor of plaintiff for $1,828.75, and defendant appealed, and assigned errors of fact and law. Before proceeding to consider such of these as are deemed material for consideration, we notice an objection of defendant in error that plaintiff cannot avail himself of objections assigned, because there were no proper motions made below for a new trial and in arrest of judgment, the entry of record on that subject being that "the defendant moved the court for a new trial and in arrest of judgment, which motion was by the court overruled," and the point made on it here that this was but one motion, and that a motion for a new trial could not have been entertained at the same time with a motion in arrest, and that a motion in arrest, thus made, waives a motion for a new trial; citing Snapp v. Moore, 2 Overt. 236, where this position was taken arguendo, but doubtless correctly, by Judge Overton, delivering the opinion of the court. But, in the view we take of it, this is immaterial. It would only affect the right of defendant to object here, as plaintiff in error, that the evidence did not sustain the verdict, because, as to errors of law, he needed no motion for a new trial to authorize a correction of errors on appeal. Wells v. Moseley, 4 Cold. 405; Mumford v. Railroad Co., 2 Lea, 397; Morgan v. Bank, 13 Lea, 239. And as there was evidence before the jury to sustain the verdict, it does not matter whether plaintiff in error could not make the question, because, if he could, it would be ineffectual, as the verdict would not be disturbed upon the facts. Passing this, therefore, we proceed to questions made and deemed essential to be noticed.

The first alleged error is the action of the circuit judge on the demurrer. The declaration was not defective for want of averment omitted. It is not necessary that it should have averred the performance or nonperformance of conditions subsequent, nor to have negatived prohibited acts or excepted risks. May, Ins. § 590.

The second and last error we notice here (though all others assigned have been considered and disposed of in consultation of the court) is as to the charge of the court upon construction and effect of this provision of the policy. Before the fire destroyed the insured building, it had been visited by a cyclone. It was a two-story building, with a portico in front, and what is designated as an "ell" addition in the rear. This was one story. The roof of the two front upper rooms had been blown away, the rafters, ceiling, and parts of walls remaining. But there was evidence...