American Insurance v. Crawford

1. Insurance. Actions. Defenses. Forfeiture. Burden of proof and error. Harmless error. Instructions. In a suit by insured . against an insurance ■ company where . the insurer ■ defended on the ground that its policy had been . forfeited because the insured secured other insurance in violation of its provisions and the insured replied admitting the existence of the additional policy, but denied that he knew of it or accepted it or that it had ever been in his possession, the burden of proving that the second policy was accepted by the insured was on the insurer, since the replication of assured was merely a denial of the essential averments of the insurers plea under the general issue. 2. Appeal and Error. Harmless error. Instructions. Even though instructions given plaintiff and defendant are conflicting, if such instructions are more liberal to the party com- . plaining than he was entitled to, it was harmless error. 3. Appeal and Error. Harmless error. Instructions. When a fact is admitted an erroneous instruction as to the burden of proof in establishing such fact was harmless.

Appeal from the circuit court of Leflore county. Hon. Monroe McClurg, Judge. Suit by J. W. Crawford against the American Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. There was a conflict in the instructions given to the plaintiff and the defendant in their application to conflicting testimony. This is fatal error. To illustrate, take the second instruction for Crawford (Record page 52), wherein the jury was told that although they might believe that there was a Philadelphia Underwriters’ Policy in existence at the time of the fire, yet the jury would find for the plaintiff, unless they believed that the policy was issued with'the knowledge and consent of the plaintiff, or that the plaintiff authorized the issue of the said policy, or had knowledge of it, that is, unless the jury believed that the plaintiff authorized the issuance of the policy, or had knowledge or its issuance, thereby excluding the idea that the plaintiff might be bound by the existence of the policy even if he had not authorized its issuance, provided, he had notice of its existence after it was issued. The fourth instruction is erroneous also, for the jury is there instructed that the burden of proof was on the defendant to show that the Philadelphia Underwriters policy had been issued, when this fact had been confessed in the defendant’s reply to the notice under the general issue. Instruction four is also erroneous because it instructs the jury that the burden of proof was on the defendant to show that the Philadelphia Underwriters’ policy was issued with the knowledge and consent of plaintiff; also, that he, Crawford, accepted it afterwards or had lcuowledge of it afterwards. Plaintiff assumed the burden to show by his reply that he, plaintiff, had no knowledge of the issuance of this policy by the Philadelphia Underwriters; and that he never accepted it, or had knowledge of it after it was issued, so we say that this instruction is right in the face of the burden assumed by the plaintiff. ' This instruction is in direct conflict with instruction number 1 given to the defendant, see record page 57; also the instruction number 3 given to the defendant, record page 58. We therefore, say that instructions given to the plaintiff were erroneous, or at least those that we have commented on, and furthermore that they were in conflict with instructions given to the defendant, and for these reasons the court erred in overruling the motion for a new trial. As stated in the case of Solomon v. Compress Co., 69 Miss. 319, and particularly on páge 326: “Facts and law may be confessed by the pleadings; and, by confessions so made, litigants must be bound, to the extent, at least of the controversy on which they are made.” .Plaintiff by his reply to the notice under the general issue, admitted the issuance of the policy in the Philadelphia Underwriters, and assumed the burden of proving that it was never issued by his knowledge or consent, or retained by him after its issuance, and plaintiff’s instructions shifted this burden, or undertook to do so to the defendant. Our court in this same case, Solomon v. Compress Co., supra, 69 Miss. 328, has said: “The court then gave directly conflicting instructions (which conflict alone created error) that the plaintiff might recover on the third count if the facts therein stated and relied upon, as estopping the defendant from denying that he was assignee of the term, were proved.” “By the sixth and eleventh instructions for the plaintiff, the court also told the jury that the plaintiff should recover upon states of fact applicable neither to the issue joined under the second count, nor to the matter of estoppel set up by the third count. “If the sixth and eleventh instructions are sought to be applied to the first count, there will be direct and palpable conflict between these instructions and the first and second instructions for the defendant.” The same doctrine as to conflict of instructions has been repeatedly announced by this court, see Southern Railroad Go. v. Kendrick, 40 Miss. 374; Chapin v. Copeland, 55 Miss. 476'; Henderson v. Henderson, 41 Miss. '584; I. C. Railroad v. McGowan, 92 Miss. 603. We respectfully submit therefore that this case ought to be reversed: First, on the facts; second, because erroneous instructions were given to the plaintiff; third, because the instructions were conflicting; and fourth, because the court overruled defendant’s motion for a new trial. The counsel in their brief undertake, to say that appellee in his reply to the defendant’s notice to the general issue, “undertook to confess and avoid the effect of the affirmative matter set up in defendant’s notice.” We are a little surprised at this statement of counsel, who are, ordinarily very fair. By no possible construction can the reply notice which was filed to the notice of the general issue be distorted into a “confession and avoidance,” of defendant’s notice to the general issue. Appellee confessed nothing. The defense set up by defendant was an affirmative one, and necessarily carried with it the burden of proof in establishing it before the jury. This, we take it, is an elementary proposition, and to quote an authority to substantiate it, would be to insult the intelligence of this court. Appellee confessed nothing, but replied that the alleged “additional policy,” was issued without his knowledge and consent, and that he never had any knowledge of its existence, and, we submit, was properly determined by the jury in a verdict in favor of appellee. On this point see specially Miller v. Phenix Insurance Co., 100 Miss. 311. A casual examination of appellant’s brief, we think, will satisfy this court that it is a labored effort on the part of appellant to make some sort of pretense for tailing this .appeal. We can hardly believe that counsel for appellant are serious in some of their criticisms of the instructions given for appellee in this case. To illustrate: They say that the fourth instruction given for appellee was erroneous, as it instructed the jury that the burden of proof was on the defendant to show that the ‘ ‘ additional, policy” was issued with the knowledge and consent of the plaintiff, and that appellee accepted it afterwards or had knowledge of it afterwards. If this is not the law, we are at a loss to understand the decision of this court in the case of L. L. é G. Insurance Company v. ■Farnsworth Lumber Company, 72 Miss. 555. The court there holds that ‘£ The burden is on the insurer to establish a breach of warranty In a policy of insurance. There is no distinction in this respect between Life and Fire Insurance.” 57 Miss. 308. Then any ££ affirmative defense” necessarily carries with it the burden of proof to establish that defense. We call the court’s attention, however, to the fourth instruction given for appellant, the defendant, which is not the law — never was the law, and never will be the law — and nobody knows it better than appellant, to wit: “The jury is further instructed that unless you believe that a preponderance of the evidence does show that plaintiff never authorized the issuance of the said policy in the Philadelphia Underwriters Company— never had notice of its existence, and never deposited it for safe keeping with a third party, you will find for the plaintiff.” This instruction required the appellee to show by a preponderance of the evidence that he never authorized the issuance of the said policy, and never had any notice of its existence and never deposited it for safe keeping with a third party. In other words, this instruction placed upon the plaintiff, the appellee, “the burden of proof” to disprove the “affirmative defense,” set up by appellant or defendant, which burden should have been borne by appellant. The court granted defendant three liberal instructions, in fact more than it was entitled to, and yet, in the face of these instructions, and the conflicting testimony, the jury brought in their verdict for plaintiff, for the amount sued for. We submit that the verdict of the jury will not be disturbed as there is nothing in the testimony to indicate that the verdict "is excessive or irregular or improper in any way. It was peculiarly the province of the jury to settle the conflict in the testimony by their verdict, and having done so, we take it that their verdict will not be ■disturbed by this court, and we take it further, that in any view of this case, that the instructions granted defendant were such as to liberally present its defense, and that it is now too late to complain of any conflict in the testimony, when all of the testimony, and" the whole record shows that justice has been done, and a substantial right sustained. We respectfully submit that the verdict of the jury is right; that if there was any error in any instruction granted for appellee, that the same was cured by the instructions given for appellant, and especially the instruction just quoted. We, therefore, respectfully ask for an affirmance of the judgment of the court below.