ON PETITION TO REHEAR. The appellee has filed herein a dignified, courteous and forceful petition to rehear. This petition is directed to two propositions, to-wit:
1. "That the burden was on the complainant and cross defendant (insurance company) to show their actions were in good faith."
2. "The presumptions are strongly in favor of the findings of fact by the Chancellor."
As to proposition No. 1 we did not burden our former opinion with an academic discussion of the subject because the question has been decided so many times in this state we deemed it sufficient to merely direct counsel's attention to the various cases annotated in the note to the Code section relied on. Under a heading in bold type, Burden of Proof, the annotator says: "The *Page 155 burden of proof is on the complainant to show that the insurer's' refusal to pay was not in good faith. Life, etc., Ins. Co. v. Robertson, 6 Tenn. App. 43, referring to dictum in St. Paul Fire, etc., Ins. Co. v. Kirkpatrick, 129 Tenn. 55, 164 S.W. 1186. See Atlas Ins. Co. v. Allen, 2 Tenn. Civ. App. 479; Pittman v. Missouri State Life Ins. Co., 12 Tenn. App. 228."
The cases here cited and others amply support the statement. Then too the very wording of the Code, section (6434) point to no other conclusion when it is said: "that it shall be made to appear . . . that the refusal to pay said loss was not in good faith," etc.
As far as we know there has never been any doubt as to the correctness of the second proposition. The fact is it is generally stated in much stronger language than that as used in the petition. The statement of the Chancellor in rendering a judgment for the penalty was not a finding of fact on this question — it was a mere conclusion of law. We stated in our original opinion: "We find no evidence that the insurer refused payment by reason of bad faith."
We have again reviewed this record and are forced to our original conclusion as above stated. There being no evidence of fact on the question we are not denying the presumption due the finding of fact of the Chancellor.
The result is that the petition must be denied. *Page 156