delivered the opinion of the court, March 1st, 1886.
The contract of insurance was upon a dwelling-house with store-room, “ occupied by a tenant for dwelling and store,” and contained a stipulation that “if any change be made as to tenants or occupancy of these premises, without being notified •to this company, and indorsed upon their policy, then this in*89surance to be void.” It was also agreed that if the premises “ be so altered or appropriated, applied or used, to or for the purpose of carrying on or exercising therein any trade, business or vocation which, according to the by-laws, added conditions, class of hazards or rates hereto annexed, would increase the hazard, unless it be by the consent and agreement in writing of this corporation, then and from thenceforth so long as the same shall be so appropriated, applied or used, this policy shall cease and be of no' force.”
At the time of the fire, and for six weeks previous, the premises were unoccupied. There was no alteration or change of use after the date of the insurance. Perhaps the risk was increased when the house became tenantless, but it was not agreed that the policy should cease when use or occupancy of the premises ceased. When the tenant moved out there was no change made by the carrying on of any trade, business or vocation on the premises. Nor was there any change .as to tenants or occupancy.- No condition or provision is in the policy relative to the premises being occupied. Where the insurance is on an occupied dwelling-house, without more, there is no agreement or promise that it shall remain occupied. “ It is vain to argue that no use at all is a use for other purposes than those for which the building was used when insured.” The policy did not bind the assured to any use, further than that when used it should be only as a dwelling-house and store. Insurance Co. v. Douglas, 58 Pa. St., 419.
This policy contains neither warranty nor condition that the premises should be occupied, unless upon notice the assurer should consent to their becoming vacant. Hence the ruling in Insurance Co. v. Fromm, 100 Pa. St., 847, does not apply to this case, for in that, a condition of the policy was: “Any building,-insured by this policy, becoming vacant or tenant-less for a period of fifteen days, notice must be immediately given to the secretary, and his consent obtained thereto in writing, otherwise the policy shall be void.”
The first and second assignments are not sustained.
Respecting one ground of defence the jury were instructed that the testimony to establish the fact that John Usaw burned the house must be as strong as would be required to convict him in a criminal court on a charge of arson. That we think was error, and for that onty must the judgment be reversed.
The doctrine that a reasonable doubt of guilt is to work an acquittal, does not apply in civil issues; in these, the result should follow the preponderance of evidence, even though the result imputes a crime: Wharton’s Law of Ev., § 1246. In reference to this rule thus stated, text-books and adjudications *90differ, and it would be difficult to ascertain on which side is the greater number. Many of them, for and against, are cited by Dr. Wharton, and we are content to refer to them, without a profitless review, or a reiteration of reasons leading to the conclusion adopted.
In a civil issue, the life or liberty of the person whose act is sought to be proved is not involved, proof of the act is only pertinent because it is to sustain or defeat a claim for damages or respecting the right of things.' When the act imputes a crime, the inculpatory evidence must be sufficient to overcome the exculpatory evidence and the presumption of innocence, otherwise there is no preponderance to establish the fact. That presumption is due every man in every court, and when it is alleged that he has done a dishonest or criminal act, the presumption weighs in his favor. In the civil issue he is not on trial. The judgment is not evidence that he is guilty of crime. The act affirmed is an incident, a fact, to be proved like other pertinent facts. For instance, in this cáse, had the insured changed the té'nancy or occupancy of the premises, without notice to the assurer, proof of the act would have been competent, and the fact established by preponderance of evidence. If a man, by deceit, fraudulently obtains insurance on a building, by like evidence his act may be established to avoid the policy; if he burns the insured building, the same rule of evidence ought to apply when it is proposed to prove the act for like purpose.
When considering the motion for a new trial, the learned judge of the Common Pleas became satisfied that he had misinstructed the jury as to the strength of evidence required, and thought the rule in Pennsylvania is indicated in Continental Ins. Co. v. Delpeuch, 82 Pa. St. 225, where it is said: “ The mere fact of death in an unknown manner creates no legal presumption of suicide. Upon evenly-balanced testimony the law assumes innocence rather than crime. Preponderating evidence is necessary to establish the latter.” But he held that the error was immaterial, for the reason that the evidence would not warrant a finding that John Usaw burned the house. That was not his view of the evidence at the trial, nor of the able counsel for the plaintiff.
A glance at the testimony, without comment, reveals there was no mistake in submitting it to the jury. The house was insured for $2,300, and rented for $60 per annum. It was unoccupied, was fired by an incendiary, and the fire was first observed a little after midnight on Sunday morning. Usaw was then living at Harrisburg, but came into the neighborhood a few days before the fire. One witness met and conversed with him near the house about nine o’clock on Friday *91evening, when he said he was going to Morgan’s; he did not go then. Some time after the fire he told the same witness that he did not tell the truth that night, and then spoke of the loss of his pocket-book. Two witnesses saw him at the house on Saturday afternoon ; one^of the two heard some person in the house, and after the fire Usaw tried to persuade him that he had heard no one in the house that afternoon. Between four and five o’clock on Saturday afternoon he passed the toll-gate and inquired of the keeper the way to Johns-town, and went the way as directed. The next morning, Sunday, between seven and eight o’clock, the keeper of the same toll gate saw him pass, going in the same direction as he went on the afternoon before, but he did not speak.
■ Concede that the exculpatory evidence was strong, and, if believed, established an alibi, still the question of fact was for the jury.
Judgment reversed, and venire facias de novo awarded.