Western Assurance Company v. Mayer

• Decision Date: 16 May 1887
• Court: Mississippi Supreme Court
• Parties: WESTERN ASSURANCE COMPANY v. THEODORE MAYER

2 So. 173

64 Miss. 795

WESTERN ASSURANCE COMPANY v. THEODORE MAYER

Supreme Court of Mississippi

May 16, 1887

April 1887

APPEAL from the Circuit Court of Warren County HON. RALPH NORTH Judge.

Theodore Mayer brought this action of assumpsit against the Western Assurance Company, on a certain policy of insurance issued by it in his favor, on a storehouse which was destroyed by fire. The defendant denied liability, on the ground that at the time of issuance of the policy and for a period of more than thirty days thereafter, but previous to the loss, the storehouse was not occupied by any person, contrary to the stipulations of the contract of insurance. Issue was taken and on the trial the plaintiff introduced his evidence. Thereupon defendant demurred to the evidence, and by its demurrer set out in detail the evidence as presented before the jury, consisting of the policy, the testimony of plaintiff, and certain letters written after the loss by defendant's local agents to its general agent, and concluded with the usual form of conclusion of a demurrer to evidence.

The court overruled the demurrer and gave judgment for the plaintiff, whereupon the defendant appealed.

Judgment reversed.

Shelton & Crutcher, for the appellant.

R. S. & L. N. Buck and Catchings & Dabney, for the appellee.

Counsel on both sides filed elaborate briefs on the merits of the case, but as they contain nothing on the point considered and decided by this court, they are omitted from this report.

T. C. Catchings, of counsel for the appellee, argued the case orally.

OPINION

ARNOLD, J.

We have experienced much difficulty in disposing of this case, on account of the peculiar manner in which it is presented. On a demurrer to evidence, nothing should be left for the court to do, but to apply the law to the facts which are admitted to be proved. Much more was required of the court in this case. It was devolved upon the court, to draw inferences and conclusions from testimony reasonably susceptible of different constructions, and to decide whether the house was insured as a vacant house or not, and whether the statement made in the application for its insurance, in regard to its being occupied, was, under the circumstances, the act of the insured or of the insurer.

Appellant's demurrer to the evidence states what the evidence, oral and written, was, but not what facts were proved by the evidence, or admitted by the demurrer. Indeed, it is not perceived that the demurrer admits anything, except that certain evidence, uncertain and inconclusive on some points, which is set out at length, was produced by appellee on the trial. It withdrew from the jury the determination of what the evidence proved, and submitted that question to the court. The demurrer was applied, not to facts, but to evidence of facts; not to positive admissions, but to testimony in some respects vague and indefinite.

This was a misconception of the office of a demurrer to evidence. Appellee should not have joined issue...