(dissenting). This case was tried to a jury and resulted in a directed verdict for the defendant. A new trial was granted, and the insurance company appealed to this court. The order granting the new trial, in my judgment, should be affirmed. Judge Whiting speaking for the court in State v. Egan, 44 S. D. 279, 183 N. W. 654, said:
“One of the particulars wherein it was claimed that, the proof of loss presented by defendant was false was in realtion to the removal of a part of the property insured. The policy under which defendant claimed the right to be reimbursed for his loss through the destruction of the property insured, covered a certain two and a half story ’building situated upon certain described land. At the time that this policy was written, there was situated on this land a building answering the above description, which building was afterwards destroyed by fire. Attached to said building, at the time of the issuance of the policy, was an addition forming a material part of the entire structure, but so attached as to be capable of removal without injury to the main building. It appears undisputed that, very soon after this and numerous other policies were written covering the same property, defendant openly caused this addition to be torn down and that he removed *435the lumber for use at other places. In the report of loss upon which the information herein is based, he failed to make any report of the removal of such addition. In charging the jury upon this phase of the case, the court so charged the jury as to virtually direct a verdict against the defendant. We do not criticize such instruction, as we believe it was fully warranted under the undisputed evidence that had been received. But appellant assigns error' in the refusal of the trial court to receive certain evidence offered by him. He sought to prove that this addition was considered an extra hazard-; that, with such addition removed, the rate of insurance upon the main building would be $1.50 per fiundred; while with the addition standing, it would be $1.75 per hundred; and that there was an understanding, at the time of the •issuance of the particular policy to which this proof of loss referred, and also when the other policies were issued, that, as a consideration for a reduction of the insurance rate from $1.75 to $1.50, he was to, and he did agree to, remove such addition. After objections to various questions asked by him had been sustained, appellant offered to prove by certain named witnesses, they being the agents of the companies issuing the policies upon the property in question, that, in his applications for insurance— which applications were oral — appellant advised the agents that this addition was foreign to the use to which he desired and intended to put the main building; that he desired the insurance solely upon the main building; that it was agreed and understood with each of said agents that, as a condition for the giving to him of a reduced rate of insurance, he should write and give to each of said agents a receipt containing a covenant and agreement to remove the said addition; and that he did write such receipts and deliver the same to said agents. This offer was refused. We are of the opinion that, in its excluding such evidence, the court committed prejudicial error. The question at issue was the criminality of defendant’s act in making his report of loss and omitting to advise the insurance company that he had removed a material part of the property insured. For the purpose of this decision, we must assume that, if allowed so to do, appellant could and would have proven to the satisfaction of the jury all of these facts concerning which he offered proof. Certainly if, as a consideration for the insurance of the main building at a lower rate, *436appellant had agreed to remove the addition so that it would not remain a menace to the property really insured, there existed no reason whatsoever why he should report to said company the fact that such addition' had been removed. If the addition had not been removed and had burned, appellant, under the facts sought to be proven, could not have claimed that the policies covered such addition.”
In conflict with Justice Whiting’s opinion, this court now says:
“Under the evidence in the record, we have no hesitancy in holding that this pavilion constituted a part of the building; that it was covered by the insurance policy and that, had such pavilion alone been damaged or destroyed by fire, while the policy was in force, the appellant' would have been liable for the loss under the terms of the policy.”
It was said in the Whiting opinion that to refuse the offered testimony was a prejudicial error.
According to the decision of this court, which we should follow, the pending appeal ought to be affirmed. The agreement to insure the main building; the refusal to issue the' policy until the dance hall and pavilion had been removed; that as soon as the dance hall and pavilion had been removed a cheaper rate of insurance might -be allowed; that before the policy was issued a conversation was held between Mr. Whitehouse, the agent, and Mr. Egan as to what specific property would be covered by the insurance; that Mr. Whitehouse stated that he would not insure the pavilion or dance hall; that it was agreed that Mr. Egan should remove the dance hall and discontinue the restaurant; that he then could make application for a lower rate of insurance; that the modifications suggested should be reduced to writing, and that Mr. Egan should write a letter to the insurance companj stating that the insurance should cover only the main building, and that he would remove the pavilion, and that upon such agreement such policy should be issued. The plaintiff further offered to show that Mr. Egan should reduce the agreement to writing and turn the letter over to Mr. Whitehouse, and that the letter should be sent to the company with the agent’s report thereon. All of this testimony was excluded. Mr. Egan then moved for a new trial, which was granted. All of this evidence *437was material to the issues and was before the court when the motion for new trial was granted. The contention that is now made that the motion for new trial presented purely questions of law is without merit. The whole record on the motion presented the sufficiency of the evidence to sustain appellant’s' contention. The rejection and admission of testimony; the right of the insured to remove the dance hall; whether or not the insured had made fraudulent proofs of loss in respect to his knowledge of the origin of the fire — -these were before the court and involved in the motion for new trial, and the -court after considering the same granted the new trial. Such ruling rested in the sound discretion of the trial court, and, under practically the unanimous decisions of this and other courts, such order should be affirmed on the grounds that it was a discretionary order.
In Hayne on New Trial and Appeal, vol. 2, 1587, it is said?
“The appellate court will never assume that the court below committed error in any respect. On the other hand, it will always assume that the court acted correctly and with legal warrant.”
Again, at page 1622, this same author says:
“Upon this controverted fact there was testimony upon both sides before the court, and it is a sufficient answer to the appeal that the court has heard the evidence and rendered its decision thereon. Upon an appeal from that decision no- inquiry can be made respecting the preponderance of the evidence. If there be any evidence in support of a finding, the action of the court must be affirmed. It is only when there is no evidence in the record in support of a finding that a decision of the trial court will be reversed upon the ground that it is unsupported by the evidence.”
On pages 1639 °f the same volume, it is said:
“Perhaps as good a statement of the rule as can be given (so far as motions for new trial are concerned) is that a motion for new trial, on the ground of the insufficiency ol the evidence, is addressed to the discretion of the court below, and that the ruling thereupon will not be disturbed except for an abuse of discretion.”
In State v. Egan, 195 N. W. 642, reported herein, I expressed my dissent and called attention to the numerous errors presented in that record. I am still convinced that the evidence was wholly insufficient to sustain the -contention that the defend*438ant made a fraudulent proof of loss in respect to his knowledge of the origin of the fire and in support of his claim for fire loss. This evidence on the making of the alleged fraudulent proofs of loss, the valuation of the properties, the sufficiency of the evidence to sustain plaintiff’s contention, were all before the court. The court having granted the new trial, these issues should now be passed upon by the court and jury on a de novo trial.
Note. — Reported in 199 N. W. 20 3. See, Headnote (1), American Key-Numbered Digest, Appeal and error, 977(3), 4 C. J. Sec. 2813; (2) Appeal and error, Key-No. 978(1), 4 C. J. Sec. 2814; (3) Insurance, Key-No. 163(2), 26 C. J. Sec. 85; (4) Evidence, Key-No. 441 (13), 22 C. J. Sec. 1672; (5) Insurance, Key-No. 133(1), 26 C. J. Sec. 35 (1925 Anno.); (6) Evidence, Key-No. 405(1), 22 C. J. Sec. 1471; (7) and (8) Insurance, Key-No. 668 (9), 26 C. J. Sec. 7-75; (9) Insurance, Key-No. 318, 26 C. J. Sec. 244 (1925 Anno.); (10) New trial, Key-No. 41(2), 29 Cyc. 783.
As to whether indications that building may be intentionally set on fire is an increase of risk, see 31 L. R. A. (N. S.) 603.