Hanover, Fire Insurance v. Pruitt

Broyles, C. J.,

dissenting. One of the conditions of the policy of fire insurance sued on was that “if a building or any part thereof fall, except as the result of fire, all the insurance by this policy on such building or its contents shall immediately cease.” The plaintiffs alleged that on March 6, 1936, the defendant, in consideration of the payment of a premium, issued a policy insuring the Pruitt-Barrett Hardware Company against loss by fire of the goods involved in this case '“for a period of twelve months from that date.” The defendant’s answer admitted that it issued a policy of fire insurance, but denied that the insurance was “for a period of twelve months” from March 6, 1936, and alleged that the policy was issued upon the conditions set forth therein which defined its duration. The petition also alleged that the property so insured and destroyed was of a certain value, and this allegation was denied in the answer. Although there was no direct reference to the fall of the building in the original petition, the plaintiffs filed an amendment in which, apparently in order to avoid the provision of the policy terminating the insurance in the event of the fall of the building before the' start of the fire, they referred to said provision and alleged a waiver thereof by the defendant. It appears affirmatively from the pleadings and the other parts of the record that the defendant did not admit, either *785in its answer or in open court, a prima facie case in favor of the plaintiffs; but, on the contrary, in its answer ancl throughout the trial, denied any liability, contending that the goods, under the terms of the policy and the facts of the case, were not insured at the time of the fire. In New South Rubber Co. v. Muse, 27 Ga. App. 549 (2) (109 S. E. 296), this court made the following ruling: '“Except in cases where the defendant by his plea admits a prima facie case as alleged in the petition, so that the plaintiff without more could recover the amount sued for, or where the defendant in open court makes such an admission and thereby assumes the burden of proof, the burden in all cases brought ex contractu lies upon the plaintiff, and it is incumbent upon him to establish all of the unadmitted material allegations as laid in the petition. Since the plea in the instant case does not admit a prima facie case, such as the plaintiff without more could recover on in the amount sued for, the general burden remained upon the plaintiff; ancl in the absence of a timely request, it was not incumbent upon the court to charge upon the shifting of the burden under the development of the evidence. Western & Atlantic R. Co. v. Brown, 102 Ga. 13 (29 S. E. 130); Brunswick &c. R. Co. v. Wiggins, 113 Ga. 842, 845 (39 S. E. 551, 61 L. R. A. 513); Askew v. Amos, 147 Ga. 613 (95 S. E. 5); Lazenby v. Citizens Bank, 20 Ga. App. 53, 55 (2) (92 S. E. 391).” Moreover, irrespective as to which party had the burden of proof at any particular stage of the trial, at the conclusion of the evidence, the plaintiffs had adduced no evidence, direct or circumstantial, showing, or reasonably tending to show, or authorizing a finding, that the fire originated before the fall of the building. Therefore, under the above-stated provision of the policy of insurance, the plaintiffs failed to prove that their property was insured at the time of the fire. The verdict in their favor was contrary to law and the evidence, and the refusal to grant a new trial was error.