Blackburn v. . Insurance Co. , 116 N.C. 821 ( 1895 )

The consolidation of the five actions upon concurrent policies of insurance on the same property was consented to, but if it had not been the judge had authority to so order, as there might properly have been only one action brought. Pretzfelder v. Ins. Co., ante, 491.

The charge of the court upon the 8th and 9th issues is not entirely clear, but it in effect amounts to an instruction that the defendants must show the conspiracy between the plaintiffs to burn and also the burning by W. A. Blackburn "beyond a reasonable doubt," for (825) the court instructed the jury that there was a presumption of innocence and that they must find "that there was no reasonable hypothesis consistent with the innocence of the plaintiffs" and that it is not sufficient "that the facts and circumstances relied upon to establish the truth of the charge are consistent with it. They must be inconsistent with his innocence." This is not the correct rule in civil actions which have nothing to do with guilt and innocence. The burden was upon the defendants as to these two issues to prove their allegations, by the preponderance of the evidence, but not beyond a reasonable doubt. It is true that authorities in other states are conflicting, but this is the general rule in civil actions and our courts have seen no reason to depart from it. Kincade v. Bradshaw, 10 N.C. 63; Barfieldv. Britt, 47 N.C. 41; Outlaw v. Hurdle, 46 N.C. 150. Both reason and the weight of authority, especially the later cases, sustain the proposition, that "in an action on a policy of insurance against fire, when the defendant pleads that the property was fraudulently burned by the plaintiff the defendant is not bound to prove such defence beyond a reasonable doubt." Blaeser v. Ins. Co., 19 Am. Rep., 747;Elliott v. Van Buren, 20 Am. Rep., 668; Jones v. Greeves, ib., 752;Ins. Co. v. Johnson, 21 Am. Rep., 223; Kane v. Ins. Co., 23 Am. Rep., 239, citing Stevens on Evidence, Art. 94, p. 115; Ins. Co. v. Berry,8 Kan. 159; Munson v. Atwood, 30 Conn. 102; Wightman v. Ins.Co., 8 La., A., 442; Marshall v. Ins. Co., 43 Mo., 586; Rothschild v.Ins. Co., 62 Mo., 356; Huchberger v. Ins. Co., 4 Bissell, 262; Sibleyv. Ins. Co., 9 Bissell, 31; Ins. Co. v. Usaw, 112 Pa. St., 80; Ins. Co.v. Jachnichen, 110 Ind. 59; Mack v. Ins. Co., 4 Fed., 59; Scott v. Ins.Co., (by Dillon, J.); 1 Dillon C. C., 105; Schmidt v. Ins. Co., 1 Gray 529; Ellis v. Buzzell, 60 Me. 209; Ins. Co. v. Wilson, 7 Wis. 169; (826) Matthews v. Huntley, 9 N. H., 150; Simmons v. Ins. Co., 8 W. Va. 474; 1 Gr. Ev., sec. 13a, note; 2 Greenleaf Ev., sec. 408, note b; Wharton Ev., sec. 1246; 1 May on Ins., sec. 583; Biddle Ins., 443; Wood Ins., sec. 101.

The defendants took no exception to the charge at the time, but in making out their statement of case on appeal they specifically excepted to the charge in this particular. This is in sufficient time for exceptions to the charge though not as to any other matters. Lowe v.Elliott, 107 N.C. 718, and other cases cited in Clark's Code (2d Ed.), p. 383, and Tillett v. R. R., post, 937.

If the assignment of the policy by Cynthia A. Blackburn was defective because her husband did not join therein, she and her husband being parties to the action, the defendants cannot complain, but taking the assignment as sufficient as to its execution, the defendants are estopped, for through their agents they assented to the assignment being made and there is neither allegation nor proof that there was any suppression of the facts or that said agents were misled or deceived in assenting thereto. It would be a fraud on the plaintiffs if the defendants could assent to the assignment, lull the assignee and assignor into a belief that the property was protected by the insurance and continue to receive the premiums, yet, when there is a loss by fire, could assert that they had been released from liability by an assignment which by their assent duly indorsed on the policy they had agreed might be made and which was relied on by the plaintiffs. It is very certain that if the defendants had not indorsed their assent the assignment would not have been made; else, why the care taken to procure such assent to be indorsed? It is true that the rule is that a policy of insurance against fire is not valid if taken out by, or if assigned to, one who has no interest in the property insured. But here the defendants agreed that the plaintiffs might execute (827) this assignment; it is not alleged that the companies had any representations made to them in order to procure their assent; that the assignee had an interest in the property and they were not incapacitated to give a valid and binding assent. That, under such circumstances, the assignment is valid and binding on the companies is held in Ins. Co. v. Flack, 56 Am. Dec., 748, and is noticed in Bibend v. Ins.Co., 30 Cal. 78, where it is held that an assignment of this character is regarded in the light of a transfer of the right to receive the money that might become due upon the happening of a loss. Fertilizer Co. v. Reams,105 N.C. 283, 295.

As the error only affects the verdict upon the 8th and 9th issues, a new trial is granted only as to them, the judgment being affirmed in all other respects. Burton v. R. R., 84 N.C. 192, 201. Tillett v. R. R., 115 N.C. 662.

New Trial.

Cited: S. c., 117 N.C. 532; Bernhardt v. Brown, 118 N.C. 709; Sydnorv. Byrd, 119 N.C. 487; S. v. Harris, 120 N.C. 579; S. v. Melton, ib., 596; Strother v. R. R., 123 N.C. 200; S. v. Pierce, ib., 749; Benton v.Collins, 125 N.C. 90; Ins. Co. v. R. R., 179 N.C. 259; Lasley v.Scales, ib., 581.

(828)