
    Nebraska Mercantile Mutual Insurance Company v. Wilber W. Myers.
    Filed April 18, 1906.
    No. 14,207.
    Instructions: Preponderance of Evidence. A preponderance of the evidence is all that is required to establish a disputed fact in a civil action, and an instruction which informs the jury that, if upon any reasonable hypothesis a fact can be accounted for upon any other theory than a dishonest one, they should so find, is a violation of that rule, and in this case reversible error.
    
      ERROR to the district court for Boone county: James E. Hanna, Judge.
    
      Reversed with directions.
    
    
      E. M. Coffin, E. J. Clements, M. W. Me Cun and A. E, Garten, for plaintiff in error.
    
      H. C. Vail and J. 8. Armstrong, contra.
    
   Jackson, C.

' This is a proceeding to reverse the judgment of the trial court rendered in an action on a fire insurance policy. Two defenses were tendered by the answer: First, that when the policy was applied for the insured represented that the property was unincumbered, while in fact it was incumbered by a chattel mortgage securing an indebtedness of $2,200, and that by the terms of the contract such misrepresentation rendered the policy void; and, second, that the fire was caused by the wilful, intentional and wrongful act of the insured. By the reply it was admitted that the representation as to the incumbrance on the property was made, but denied that the representation was false; and, pleading to the charge that the fire was caused by his wilful, intentional and wrongful act, the allegation is: “Plaintiff denies that the fire which destroyed all the property described in the plaintiff’s petition, which was destroyed, was caused by the wilful, intentional or wrongful act of the plaintiff.” The trial resulted in a verdict and judgment for the plaintiff.

The property destroyed was a livery bam (on leased ground), two stallions, other horses, and such property as is usually kept in a livery barn. It appears that the plaintiff purchased the barn of one Culver in the latter part of March, 1902; that on the 2d day of that month Culver gave a chattel mortgage to the First National Bank of Albion, securing an indebtedness’ to that bank upon the property sold to the plaintiff, and other property retained by him. The mortgage was not of record at the time of the sale. Soon afterwards, however, the bank placed the mortgage on file. After the existence of the mortgage had been established at the trial, the cashier of the bank was called as a witness on behalf of the plaintiff, and testified that immediately after the mortgage was filed the plaintiff came in and objected to their holding the mortgage on the bam, as he had purchased it and paid for it, and they told him that they didn’t wish to cancel the mortgage because it covered other property they wished to hold; that they had no lien on the barn and didn’t care to hold a lien on it; that after some other talk the plaintiff said he was satisfied, and he would come in later with Culver, and he stated it as his recollection that the plaintiff required a bond from Culver to hold him harmless. Under this state of facts, we think the jury were justified in finding that the insurance company was not prejudiced by the representations of the insured at the time he applied for the policy. The plaintiff had a right to rely upon the statement of the officers of the bank that they claimed no lien on the barn, in view of the fact that the mortgage was not of record -when he procured the title.

It is urged, however, that the denial of the charge that the fire was caused by the wilful, intentional and wrongful act of the insured amounted to an admission that the insured caused the fire, and that the denial was only as to the purpose and intent; that evidence was introduced tending to show that the circumstances under which the fire occurred pointed to the plaintiff as having set the fire purposely. The plaintiff testified in his own behalf that he did not set the fire, and after the verdict of the jury had been returned the defendant presented a motion for a judgment notwithstanding the verdict. While that motion was pending, the plaintiff asked leave of the court to amend his reply by alleging that the fire was not caused by any act of the plaintiff. This application Avas denied; the motion for a judgment notwithstanding the verdict overruled and judgment entered on the verdict. That the pleading is susceptible of tbe construction placed upon it by tbe defendant is doubtless true, but tbe trial court might reasonably, within tbe exercise of a sound discretion, have permitted tbe amendment to be made. We have concluded that tbe judgment must be reversed for other reasons, and think that before tbe case again proceeds to trial tbe amendment suggested ought to be allowed.

Tbe court instructed tbe jury: “You are instructed that tbe law presumes every one to be honest and upright in all their transactions until the contrary be proved, and so in every case you should endeavor to reconcile tbe facts with such theory, if it can be reasonably done; and in considering evidence, if upon any reasonable hypothesis a fact can be. accounted for upon any other theory than a dishonest one, you should so find;” To the giving of this instruction the defendant excepted, and now insists that it was prejudicial error. We think that the objection to the instruction Avas well taken. All that the law requires in a civil action is that a disputed fact be established by a, preponderance of the evidence. The language employed would be appropriate to an instruction in a criminal case, where the jury is required, before conviction, to be satisfied to the exclusion of every reasonable doubt; but the doctrine of reasonable doubt does not enter into the trial of a civil action. This instruction Avas doubtless in' tended to apply to the charge that the fire was caused by the wilful, intentional and wrongful act of the insured, and the jury might well infer that they were justified in finding that the fire Avas not so caused, if the fire could be explained upon any other reasonable hypothesis. Such is not the law in civil actions.

We recommend that the judgment of the district court be reversed and that the cause be remanded for a neAV trial, with instructions to permit the amendment to the reply requested by the plaintiff.

ALBERT. C.. concurs.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial, with instructions to permit the amendment to the reply requested by the plaintiff.

Reversed.  