Fire Insurance — Defense of Wilful Burning of Insured Building by Mortgagor as Available against both Mortgagor and Mortgagee — Burden of Proof of Defense of Wilful Burning of Insured Building — Motion To Set Aside Verdict as Against or Contrary to Evidence as Addressed to Trial Court's Discretion — Motion To Set Aside Verdict as Not Supported by Evidence as Involving Law Question and Subject to Review — New Trial — When Motion To Set Aside Verdict as Not Having Evidence To Support It Should Not Be Granted and View of Evidence To Be Taken on Such Motion — Presumption in Favor of Lower Court's Ruling on Motion To Set Aside Verdict — Action of Court Precluding Indulgence in Presumption That Court Acted in Its Discretion in Setting Aside Verdict as Contrary to Evidence — Jury Question — Denial of Defendant's Motion for Directed Verdict as Not Precluding Court from Setting Aside Plaintiff's Verdict as Contrary to Evidence — Weight of Evidence Not Matter for Supreme Court on Review of Ruling of Trial Court on Motion To Set Aside Verdict, unless Abuse of Discretion Shown — "Difference in Judicial Opinion" as Not Synonymous with "Abuse of Judicial Discretion" — What Must Appear To Justify Supreme Court in Reversing Trial Court's Ruling on Motion To Set Aside Verdict as Contrary To Evidence — Supreme Court Must Indulge Every Reasonable Presumption in Favor of Lower Court's Ruling on Motion To Set Aside Verdict as Contrary To Evidence — Admissibility and Effect of Circumstantial Evidence To Establish That Insured Caused Insured Buildings To Be Burned — Presumption of Innocence as Available To Mortgagor on Issue Whether He Burned Insured Buildings — Presumption That Trial Court Exercised Its Discretion — Sufficiency as to Mortgagor's Connection with Burning of Insured Buildings To Show That Trial Court Did Not Abuse Its Discretion in Setting Aside Verdict for Insured.
1. In action of contract on fire insurance policy, defense that fire was caused by fraudulent act or mortgagor in that he willfully burned or caused to be burned insured building, held available both against mortgagor and mortgagee, loss being payable to latter as his interest might appear.
2. In such action, burden of proving defense that mortgagor wilfully burned or caused to be burned insured building was on defendant.
3. Motion to set aside verdict as against or contrary to evidence is addressed to discretion of trial court, and its action thereon is not revisable unless it appears that there has been an abuse or withholding of discretion.
4. Motion to set aside verdict because there is no evidence to support it presents question of law, which is subject to review.
5. Motion to set aside verdict on ground that there is no evidence to support it cannot properly be granted if there is evidence fairly and reasonably tending to justify verdict, and evidence must be taken in most favorable light for prevailing party.
6. If affirmative ruling on motion to set aside verdict can be sustained upon any of several grounds specified in motion, judgment must be affirmed.
7. On review of affirmative ruling of lower court on motion to set aside verdict, containing among others ground involving court's discretion, Supreme Court, if nothing appears to contrary, will assume that lower court acted solely as matter of discretion, but where lower court specifically based its ruling on three different grounds, including lack of supporting evidence, such presumption cannot be indulged.
8. In action of contract on fire insurance policy, where defense was that fire was caused by fraudulent act of mortgagor, in that he wilfully burned or caused to be burned insured building, evidence on question whether mortgagor was guilty of such act held for jury, so that granting of motion to set aside verdict for plaintiff on ground of lack of supporting evidence was error.
9. Denial of defendant's motion for directed verdict does not preclude court from setting aside verdict as contrary to evidence in exercise of court's discretion.
10. That there is some evidence tending to support verdict, does not prevent court from exercise of discretion in setting verdict aside.
11. In review of action of trial court in setting aside plaintiffs' verdict as contrary to evidence, as to plaintiffs' claim that defendant's evidence could not be said to preponderate, Supreme Court may not say where weight of evidence lies, unless so clearly manifested that to hold otherwise would constitute abuse of trial court's discretion.
12. In review of action of trial court in setting aside plaintiffs' verdict as contrary to evidence, "difference in judicial opinion" is not synonymous with "abuse of judicial discretion."
13. Supreme Court will not disturb ruling by which verdict has been set aside as contrary to weight of evidence merely because evidence preponderates in its favor, but to justify interference it must appear that evidence is so strongly in its favor as to leave no reasonable basis for contrary verdict.
14. Supreme Court is bound to indulge every reasonable presumption in favor of ruling of lower court in setting aside verdict as contrary to evidence.
15. In action of contract on fire insurance policy, where defense was that mortgagor wilfully burned or caused to be burned insured building, circumstantial evidence was admissible to establish fact in issue, and, if sufficiently persuasive, might establish such fact.
16. In such action, on issue whether mortgagor wilfully burned or caused to be burned insured building, there is no presumption of wrongdoing, but, on contrary, he is presumed to be innocent.
17. Supreme Court must presume that trial court exercised its discretion as required by law in setting aside verdict as contrary to evidence.
18. In action of contract on fire insurance policy, where defense was that mortgagor wilfully burned or caused to be burned insured building, evidence held to show that trial court did not abuse its discretion in setting aside verdict as contrary to evidence.
MOULTON, J.
This is an action of contract upon a policy of fire insurance covering certain property owned by the plaintiff Belock and mortgaged to the plaintiff Crampton, the loss being payable to the latter as his interest might appear. The plea is that the fire was caused by the fraudulent act of Belock, in that he wilfully burned or caused to be burned the insured building. This defense was available as against both Belock, the mortgagor, and Crampton, the mortgagee (Girard v. Vermont Mutual Fire Insurance Co., 103 Vt. 330, 334, 154 A. 666), but the burden of proving it was upon the defendant. Cummings v. Connecticut General Life Insurance Company, 101 Vt. 73, 85, 142 A. 82. The defendant moved for a directed verdict, but the motion was denied, subject to its exception. The jury returned a verdict for the plaintiffs, which the court, on defendant's motion, set aside. Both plaintiffs and defendant have filed bills of exceptions, and there are two questions for determination: (1) Whether the court erred in setting the verdict aside, and (2) whether the court erred in overruling the motion for a directed verdict.
The motion to set aside was based upon five grounds, but the trial court granted it upon the first, second and fifth grounds, which were as follows: (1) For that the said verdict was contrary to any reasonable inference from all the evidence that the plaintiff Belock did not burn or cause to be burned the property for the insurance on which the plaintiffs seek to recover; (2) for that the verdict is contrary to the evidence, and not warranted thereby or by any reasonable inference to be drawn therefrom; (5) for that from the evidence and all reasonable inferences to be drawn therefrom there was nothing upon which reasonable men could differ and that the defendant was entitled to a verdict.
The distinction between a motion to set a verdict aside as against the evidence, and one based upon the ground that there is no supporting evidence is stated in French v. Wheldon, 91 Vt. 68, 69, 99 A. 232. In the former case, the motion is addressed to the discretion of the trial court, and its action thereon is not revisable unless it appears that there has been an abuse or withholding of discretion. Butler v. Favereau, 105 Vt. 382, 383, 166 A. 1; Sargent v. Robertson, 104 Vt. 412, 420, 160 A. 182; Porter v. Fleming, 104 Vt. 76, 82, 156 A. 903; Robinson v. Leonard, 100 Vt. 1, 11, 134 A. 706; Temple et ux. v. Atwood, 99 Vt. 434, 435, 134 A. 591; Sharby v. Town of Fletcher, 98 Vt. 273, 281, 127 A. 300. The rule is the same where the ground for the motion is that the verdict is contrary to the evidence, Butler v. Favereau, supra; Paska et al. v. Saunders et al., 103 Vt. 204, 217, 153 A. 451; Daniels v. Preston, 102 Vt. 337, 339, 148 A. 285; Temple et ux. v. Atwood, supra; Wellman, Admr. v. Wales, 97 Vt. 245, 249, 122 A. 659. But where it is claimed that the verdict should be set aside because there is no evidence to support it a question of law is presented which is subject to review. Shields et al. v. Vermont Mutual Fire Insurance Co., 102 Vt. 224, 255, 147 A. 352; Nichols v. Lane, 93 Vt. 87, 89, 106 A. 592. If there is any evidence fairly and reasonably tending to justify the verdict the motion cannot properly be granted. Paska et al. v. Saunders et al., supra, page 216 of 103 Vt. 153 A. 451; Jacobs v. Loyal Protective Ins. Co., 97 Vt. 516, 527, 124 A. 848. The evidence must be taken in the most favorable light for the prevailing party, for the motion, in this respect, is the same in nature and substance as a motion for a directed verdict. Twin State Fruit Corp. v. Kansas, 104 Vt. 154, 157, 157 A. 831; State v. Pierce, 103 Vt. 383, 154 A. 675; Paska et al. v. Saunders et al., supra; Shields et al. v. Vermont Mutual Fire Insurance Co., supra; Farnham Sons, Inc. v. Wark, 99 Vt. 446, 451, 134 A. 603.
Of the three grounds for the motion in the instant case, the second called for the exercise of the court's discretion. The fifth is in substance that there was no supporting evidence. And so, as we construe it, is the first also, because the expression "that the said verdict was contrary to any reasonable inference from all the evidence," is equivalent to a claim that there was nothing in the evidence which justified the verdict. Of course, if the ruling can be sustained upon any one of the grounds, the judgment must be affirmed. If nothing appeared to the contrary, we would assume that the court acted solely as a matter of discretion (Parkhurst v. Healy's Estate, 97 Vt. 295, 296, 122 A. 895; Temple et ux. v. Atwood, supra), but there is no room for such an assumption here, because the court specifically based its ruling upon all of the three grounds stated. Therefore, we consider the evidence as it bears upon each of the questions raised.
The burned building was the horse barn on the Belock farm, situated about a mile southerly of the city of Rutland. It was about 50 feet distant from the nearest part of the dwelling house, and was 80 feet long by 36 feet wide, with a slate roof, and sills 8 x 8, 6 x 6, and 5 x 5. The alarm was received at the fire station in Rutland at 9.10 p.m. on December 14, 1932, and by the time the apparatus reached the scene, the barn was all in flames. No one was about the place. The evidence on the part of the defendant was to this effect: When the firemen reached the farm, one of them broke open the front door of the house, which was apparently locked, and searched for any possible inmates. The heat was so intense that the paint on the side of the house next to the barn had commenced to blister, and a stream of water was directed against the house to prevent its burning. No one was found in the house, but on the cellar floor, on the side near the barn, there was a smouldering fire in a rubbish pile, which had evidently been burning more fiercely, because the ceiling of the cellar directly above it was scorched and charred. Not far away there was a pile of inflammable material, two feet high, consisting of an egg crate, a pasteboard box, papers and rags, all saturated with kerosene oil, but not ignited. On the north wall of the cellar, on top of the stonework and under the beams supporting the house, were stuffed rags soaked in kerosene and extending for a distance of 20 feet. More rags soaked in kerosene were found in a similar position on the west wall. No window in the cellar was opened. Kerosene had been spilled on the floor of one of the rooms on the first floor. On the second floor, near the head of the stairs, the baseboard had been pulled off and saturated with kerosene and, behind a door, there was a place in the wall where the plaster had recently been knocked off, a lath pulled out and in the aperture there were rags soaked in kerosene. The plaster around the hole was wet with kerosene. A can containing a small quantity of kerosene was found in the attic and the floor was wet with the liquid. On the floor of one of the first floor rooms there was a liquid which burned with a blue flame when a lighted match was applied to it, and was apparently alcohol. On the morning of the day of the fire, Belock purchased five gallons of kerosene of which he used one quart in spraying his cows for lice, and one quart in filling two lanterns. About two weeks before that he had received, from the agent of the mortgagee, a demand for a payment upon the mortgage debt, which then amounted to $9,500. When Belock reached the farm on the evening of the fire, the barn was practically consumed, and there was evidence tending to show that he exhibited no surprise or curiosity, but went calmly into the house where he kindled a fire in a stove for the purpose of warmth. It was the theory of the defense that Belock intended and prepared to burn both barn and house; that he succeeded as to the former building, but failed as to the latter because there was no opening in the cellar, and so no draft for the fire he had kindled.
The plaintiff introduced evidence tending to show that Belock, his wife and one son were engaged in milking between five and six o'clock in the afternoon. The cow barn was some 600 feet from the house. At about six o'clock they went to the house, had their supper, and along with all the other children then at home, they went in their automobile to visit a friend who lived about two and one-half miles away. On the way, they were joined by remaining child, a daughter who was employed in Rutland, and three of the sons stopped at a bowling alley where they worked as pin boys. The time of leaving the farm was about 20 minutes to seven, and they all returned shortly after 10 o'clock, while the fire was in progress. Two Italians, one named Frank Drury, and the other known only as Joe, had been intermittently occupying one of the first floor rooms in the house, for the purpose of manufacturing beer. There were two entrances to the room, one from the hallway, and the other from the yard, on the side next to the horse barn. It was upon the floor of this room that the liquid which burned with a blue flame was discovered. On the morning of the day of the fire, Belock ordered the two Italians off the premises, because they had not paid their rent, and one of them threatened that he would "get back at him." They departed that day taking a part of their apparatus with them, but leaving behind a three-burner oil stove, along with some other articles. They moved a large vat out upon the porch. There was an entrance to the cellar from the outside, and in both the horse barn and in the house there was personal property not covered by the policies in suit. Belock denied all knowledge of the fire or agency or participation in causing it. His evidence tended to show that one of the cellar windows was broken.
With the evidence standing thus, and taking it most favorably for the plaintiffs, it is clear there was a question for the jury, and, consequently, there was no error in the denial of the defendant's motion for a directed verdict. It follows that the granting of the motion to set the verdict aside, so far as the first and fifth grounds were concerned, was error. These rulings were upon questions of law, and, as we have seen, the issue was the same in each instance.
But whether the discretionary ruling, by which the verdict was set aside upon the second ground, should be sustained is another matter. The question is not precluded by the previous denial of the motion for a verdict. Bradley v. Blandin, 94 Vt. 243, 257, 258, 110 A. 309. That there is some evidence tending to support the verdict does not prevent the exercise of discretion in setting it aside. Smith v. Martin, 93 Vt. 111, 122, 106 A. 666. The plaintiffs insist that it cannot be said that the defendant's evidence preponderated over theirs, but the trouble with this argument lies in the fact that it is not for us to say where the weight of the evidence lies, unless it is so clearly manifested that to hold otherwise would be an abuse of the trial court's discretion. We have no discretionary power in the matter. Bradley v. Blandin, 94 Vt. 243, 257, 110 A. 309. The question is not what we might have done in the circumstances, for "difference in judicial opinion" is not synonymous with "abuse of judicial discretion." Dyer v. Lalor, 94 Vt. 103, 116, 109 A. 30; Temple et ux. v. Atwood, 99 Vt. 434, 435, 134 A. 591. We do not upset a verdict merely because the evidence preponderates against it; in order that we may do so, it must appear from the record that the evidence so preponderates against the verdict as to leave no reasonable basis upon which it can stand. Catto v. Liberty Granite Co., 101 Vt. 143, 146, 147, 141 A. 684. Conversely, the same rule applies also. We will not disturb a ruling by which a verdict has been set aside, as contrary to the weight of the evidence, merely because the evidence preponderates in its favor; to justify our interference it must appear that the evidence is so strongly in its favor as to leave no reasonable basis for a contrary verdict. We are bound to indulge every reasonable presumption in favor of the ruling, bearing in mind that the trial court was in the better position to determine the question. Woodhouse v. Woodhouse, 99 Vt. 91, 152, 153, 130 A. 758.
The plaintiffs stress the ill will of the evicted Italians, and their opportunity for revenge, and the fact that the testimony connecting Belock with the fire was circumstantial. But such evidence was admissible, and, if sufficiently persuasive, might establish the fact in issue. Girard v. Vermont Mutual Fire Insurance Co., supra, page 335 of 103 Vt., 154 A. 666. It appeared without dispute that elaborate preparations had been made for an incendiary fire. Of Belock's purchase of five gallons of kerosene, only two quarts had been accounted for. He had been present upon the farm nearly all that day. The construction and size of the horse barn were such that a fire kindled before the time he left the premises might not have gained sufficient headway to be noticeable until the time the alarm was given. True, there is no presumption of wrongdoing; on the contrary, the presumption of innocence is to be reckoned with. It was, as the plaintiffs argue, unlikely that, on a cold December night, Belock would plan to render his family homeless. But, again, there were the mortgage, the recent demand for payment, and the comfortable expectation of a sum of money from the insurance company, if the buildings should be burned. It is not inconceivable that he should prefer this way of escape from his financial obligation, even at the expense of his family's comfort, in spite of his denial.
These circumstances, the weight to be given to them and the inferences to be drawn from them, were for the trial court to consider in passing upon the motion. We must presume that its discretion was exercised, since the law required it. State v. Stacy, 104 Vt. 379, 389, 160 A. 257, 747. It is enough for us to say that, all in all, the record does not show that the discretion of the court was exercised on grounds, or for reasons, clearly untenable, or to an extent clearly unreasonable, without which no abuse of discretion is made to appear. Temple et ux. v. Atwood, 99 Vt. 434, 435, 134 A. 591; Schlitz v. Insurance Company, 96 Vt. 337, 342, 119 A. 513; New England Box Co. v. Tibbetts, 94 Vt. 285, 290, 110 A. 434.
Judgment affirmed, and cause remanded.
Comments