
    V. Thompson v. The General Mutual Insurance Company of New York.
    A verdict of a jury for plaintiff in accordance with a former judgment of the District Oourt in the same case, upon a doubtful question of fact; held to be sufficient to authorize an affirmance by the Supreme Court of a second judgment based upon the verdict, though the plaintiff failed to present clear and indisputable proof of a right to recover.
    from the Fourth District Court of New Orleans, Larue, J.
    
      0. Roselius, for plaintiff.
    
      Mlward Briggs, for defendant, appellant.
   Buchanan, J.

(Slidell, C. J., and Ogden, J., dissenting).

This is an action on a policy of insurance, to recover a loss by fire. The case was on appeal in this Court before our predecessors, from a judgment rendered in the Court below in favor of the plaintiff.' They remanded the case for a new trial, and in the opinion delivered by Justice Rost, he says, “ This case presents mere questions of fact, and if there was in the record, positive evidence of the main fact upon which it turns, to-wit: that all the furniture alleged to have been destroyed by fire, for which the indemnity was claimed, was in that part of the house where the fire occurred, we could not interfere with the judgment.”

On the return of the case to the Oourt below, the plaintiff prayed for a trial by jury, and after receiving additional evidence of the second trial, the jury returned a verdict in favor of plaintiff. The defendants, after an unsuccessful attempt to obtain a new trial," have taken this second appeal.

On examination of the evidence, we are not satisfied that the verdict is so manifestly erroneous, as to authorize us to disturb it. The evidence on the part of the defendant, is of a nature to create a doubt in the mind, whether some of the articles for which indemnity is claimed, were consumed by the fire. There is, however, positive evidence that these articles were in the house and stowed away in the attic, previous to the fire ; and there is no evidence from which it could be inferred that they were removed before the fire, except the negative testimony of witnesses, who state that they could discover no signs in the. rubbish, that such articles had been consumed. This evidence did not satisfy the jury, and has not produced such a conviction in our minds as to induce us to release the defendants from their undertaking to indemnify the plaintiff, in the face of the verdict of the jury. The whole case has been the subject of our anxious and protracted consideration; but the majority of the Oourt is of opinion,' that in a doubtful question of fact, it is the safest course to abide by the decision of the jury, upon a case remanded, when that decision affirms the previous judgment of the Oourt of the first instance. The Judge and jury in the District Oourt saw and heard the witnesses, their reiterated decision in favor of- plaintiff, has given to her claim a sanction, which in our view supplies the want of entirely clear and indisputable proof.

Judgment affirmed with costs.

Vooehies, J., and Spofford, J., concurring. Slidell, O. J., and Ogden, J., dissenting.  