Shields v. Vermont Mut. Fire Ins. Co.

• Decision Date: 01 October 1929
• Citation: 147 A. 352,102 Vt. 224
• Parties: CHARLES A. SHIELDS ET AL. v. VERMONT MUTUAL FIRE INSURANCE COMPANY
• Court: Vermont Supreme Court

147 A. 352

102 Vt. 224

CHARLES A. SHIELDS ET AL. v. VERMONT MUTUAL FIRE INSURANCE COMPANY

Supreme Court of Vermont

October 1, 1929

May Term, 1929.

Insurance---Denial of Liability as Waiver of Proof of Loss---G. L. 5568---Acts 1921, No. 160, 1---Time before Suit May Be Instituted on Policy---When Time Begins To Run---Admissibility of Insurer's Letter Denying Liability---Trial---View of Evidence on Motion for Directed Verdict---Jury Question---Motion for Directed Verdict on Ground of Insufficiency of Evidence---Consideration of Circumstantial Evidence on Such Motion---Sufficiency of Evidence To Make Jury Question Whether Insured's Property Damaged by Lighting and Extent Thereof---Pleading---Matters Put in Issue by General Denial to Statutory Complaint on Insurance Policy---G. L. 1801---Question of Sole and Unconditional Ownership of Property by Insured---Scope of Pleadings as Determining Question of Direction of Verdict---Requirement of Pleading Special Defense Not Waived by Failure To Object to Evidence Relating thereto Admissible on Another Issue---Opinion Evidence by Lay Witness---Harmless Error---Question Not Raised below---Insufficiency of Offer To Show Error in Exclusion of Testimony---Determination of Qualification of Expert Witness---Effect of Offer of Excluded Evidence Broader than Question Asked and Not Wholly Responsive to It---Exception to Court's Ruling as to Witness' Competency Does Not Raise Question that Evidence Offered Was Made Admissible by Cross- examination---Cross-examination---Statements by Parties Made When Taking Objections as Attorneys for Themselves---Order of Reception of Evidence for Trial Court---Discretion---Presumptions---Abuse of Discretion---Duty of Counsel Claiming To Be Taken by Surprise by Evidence Offered in Rebuttal---General Exceptions---Refusal To Give Requested Instruction Substantially Complied with Elsewhere---Interest---"Law of The Case"---Damages---Motion To Set Aside Verdict for Want of Supporting Evidence---View of Evidence on Such Motion---Sufficiency of Evidence To Sustain Damages Awarded---Tendency of Evidence Rather than Weight for Consideration on Such Motion.

1. Provision of G. L. 5568, that amount of loss under a fire insurance policy shall be due and payable in 60 days after receipt by insurance company of satisfactory proof of loss held for benefit of insurer, such as might be waived by it and waived by letter from insurer to insured denying liability, so that suit on policy commenced 60 days after such denial was not prematurely brought so far as such statute was concerned.

2. Under Acts 1921, No. 160, 1, prohibiting an insurance company from paying any loss or damage, until after 45 days from date when proof of loss is executed, subject to certain exceptions, waiver by company of filing of proofs of loss by denial of liability has same effect as though proof of loss had been filed, and prescribed time commenced to run from that moment, hence suit instituted more than 60 days after such denial was not premature.

3. In action on fire insurance policy containing lightning clause where plaintiffs admitted no proof of loss had been filed, but claimed waiver thereof by denial of liability on part of insurer, admission in evidence of letter from insurer with reference to policy in question, stating "we have decided to deny liability, as the barn was blown down and not struck by lightning," held not error.

4. In consideration of defendant's motion for a directed verdict on ground of insufficiency of evidence, Supreme Court will view evidence in light most favorable for plaintiff.

5. In consideration of such motion, testimony which is not impossible, though it may be unreasonable, inconsistent, or contradictory, is for jury's consideration.

6. Where there is any substantial evidence supporting plaintiff's claim, question is for jury, and, where intelligent and fairminded men may reasonably differ in conclusion to be drawn from evidence, it cannot be said there is no evidence.

7. On defendant's motion for a directed verdict on ground of insufficiency of evidence, question for determination is, was there substantial evidence from which, if believed, and excluding effect of modifying evidence, jury could reasonably infer existence of facts necessary to support plaintiff's case.

8. Where evidence introduced by plaintiffs in support of their case was entirely circumstantial, to sustain denial of defendant's motion for a directed verdict on ground of insufficiency of evidence, circumstances taken together must reasonably tend to support inference, and conclusion from facts offered must be at least more probable hypothesis with reference to possibility of other hypotheses.

9. In action on fire insurance policy containing lightning clause to recover for alleged destruction by lightning of property insured, where defendant claimed damage was caused by wind, evidence as to storm, condition of wreckage, nature and results of lightning, held to make question whether barn was struck by lightning for jury.

10. In such action, evidence held sufficient to sustain finding of jury that entire damages to property insured was caused by lightning, wind not entering into it at all.

11. In action on lightning clause of fire insurace policy, where plaintiffs alleged that property insured was "property of the said plaintiffs," held that general denial did not put in issue question of plaintiffs' sole and unconditional ownership, since an allegation of property is a very different thing than an allegation of unconditional and sole ownership, and, complaint being made in manner prescribed by G. L. 1801, by express provision of such statute itself answer by way of general denial put in issue only execution of policy and amount of damages.

12. A verdict is not to be directed upon an issue not within scope of pleadings, even though matters claimed to constitute defense appear from evidence necessarily introduced to make out case, since such evidence is to be regarded only as bearing upon issue joined.

13. In action on fire insurance policy, failure of plaintiffs to object to introduction of evidence in support of allegation in defend-

ant's answer then in issue that property was held by plaintiffs as partners and so was not covered by policy running to plaintiffs as individuals, which defect in title was subsequently expressly waived in record by defendant, held not to waive requirement of special answer, if question of sole and unconditional ownership was to be an issue.

14. In action on lightning clause in fire insurance policy, where witness at time of storm who was sitting in his house, which was 2,500 feet from barn for whose destruction recovery under policy was sought, looking in general direction of barn, testified that he heard "an awful heavy crash" of thunder within half a minute after a lightning flash, and formed a judgment at time as to how near lightning struck, held that he was entitled to state as his opinion that "it struck pretty close by," over objection that he was not qualified to express an opinion, notwithstanding lapse of time mentioned, if language of witness were considered as used with scientific accuracy, might show stroke was far from barn or had no relation to thunder, since non-expert testimony is not given with such meticulous regard for minutiae of time and space, and witness was evidently trying to describe a very short period of time.

15. Where facts are of such a character as to be incapable of being presented with their proper force to anyone but observer, so as to enable triers to draw correct or intelligent conclusion from them without aid of judgment or opinion of witness who had benefit of personal observation, he is allowed to certain extent to add his conclusion, judgment, or opinion.

16. In action on fire insurance policy, refusal to strike out answer made by plaintiff, in response to question whether he had ever executed proof of loss, that he had "showed and proved to the company the loss on this property," if error, held harmless, where plaintiff made no claim that it tended to show proof of loss was executed within Acts 1921, No. 160, but relied upon denial of liability by defendant as waiver of execution of proof of loss.

17. Error, if any, in excluding evidence bearing upon qualifications of witness as an expert, was cured when court, to whom question of witness' qualification was addressed, found him to be an expert, and permitted him to testify as such.

18. Question that exclusion of evidence of qualifications of expert witness was error, in that it was material for consideration of jury in determining weight to be given to expert's testimony, not having been raised below, will not be considered in Supreme Court.

19. Exclusion of question asked expert contractor and builder as to what relation spaced boarding and apertures on westerly side of barn would have to strength of barn with wind blowing from west or northwest, held without error, where offer in relation thereto was merely to show that strength of barn without wind would be one thing and with wind another, nothing being said as to the strength and velocity of wind, or as to what witness was expected to say.

20. In action on lightning clause of fire insurance policy exclusion of question asked expert contractor and builder as to effect strong wind coming from west or northwest would have on barn which had spaced boarding and apertures on west side, offered to show that resistance of barn under such conditions would be far less than if constructed without such openings, held without error, where witness had said nothing as to his knowledge of effect of wind, and resistance of building to it, as fact that, in constructing buildings, he might have to take into...