(dissenting).
This action should be sent back for a new trial because of the serious results which arose from a misunderstanding as to what had occurred at an unrecorded trial conference between the court and counsel. The situation was not cured, as the majority opinion contends, by plaintiff’s attorney saying, “I will take it as your Honor remembers it.” That statement followed and was intimately connected with the attorney’s request that the court charge “ * * that this is the clause and that the burden is upon the defendants to prove it by the preponderance of the evidence.” The judge, answering that request, said, “I can tell them that.” What he said to the jury was, “In the next place, when it comes to a person who sets up specific defenses against paying that money, that same burden by the greater weight of the evidence rests upon that individual in establishing that particular defense.” The difficulty with this generality was that the court had already eliminated the necessity of establishing that part of the increased hazard defense dealing with control by the insured when he earlier charged that “As far as the control is concerned, I understand the plaintiff raises no question that while he was but a tenant, he could, by pressure on the landlord, have controlled the situation.” It was over this part of. the charge that the dispute arose as to what had been agreed. Plaintiff’s attorney earnestly urged that he had not acknowledged that the defense need not prove control by plaintiff. Unquestionably he assumed, when the judge accepted his above referred to suggestion, that the matter would be straightened out to his satisfaction by the court again reading the increased hazard clause and advising the jury that the defendant must “ * * * prove it by the preponderance of the evidence.” The language which the court employed had no such consequence. It did not eradicate the prior instruction that control under the policy clause was admitted to have been in the plaintiff. The statement of plaintiff’s attorney was predicated on anticipated corrective (from his point of view) language to be added to the charge and directed specifically to the necessity of the defense properly establishing the increase of hazard defense. When it was not charged he should have objected further but his failure to do so is no indication that at that time, as the case was going to the jury, he was changing his entire trial theory and admitting control in the plaintiff.
Quite aside from the above, and assuming that the recollection of the trial judge regarding the conference conclusion was correct, there is another substantial ground for reversing this judgment. The court charged the jury that whether the hazard had been increased was a factual problem for their decision. After that he said that the increase of hazard “ * * * must have been of a character which put it within the control or knowledge of the insured.” He followed this with the sentence quoted in the majority opinion in which he said in effect that plaintiff having admitted control that question was out of the case. Then he charged on the question of knowledge.- He concluded his remarks on that subject by saying, “So here, you see, comes in a further question of fact for you to decide. Did the plaintiff know of such a condition or must that knowledge have been *718imputed to him as a reasonable man ?” Immediately thereafter he said:
“If you find, therefore, that the hazard was increased, as a matter of fact, that it was increased within either plaintiff’s control or knowledge, then the policy is avoided and plaintiff cannot recover thereon because the companies would be asked to insure something which was not at all the animal which they originally agreed to insure.” (Emphasis supplied).
Since the jury had already been told that control by the plaintiff was conceded the result of the above instruction for all practical purposes was to direct a verdict in favor of the defendant companies and against the plaintiff in the event the jury found the hazard to have been increased. In so doing the trial judge construed the increased hazard clause disjunctively — the way it is worded. Plaintiff’s attorney himself was of no help to the court in arriving at the proper interpretation of the phrase “control or knowledge” when he told the judge as is set out in the majority opinion that he had no objection to the court charging the language of the policy clause. Apparently neither at that time nor on any other occasion in the course of the trial did he or counsel for the defendants make an attempt to advise the court of the real meaning of the clause.
That the increase of the fire hazard under the policy clause must not only have been within the control of the insured but to his knowledge is flatly stated in the majority opinion.6 It is just as clearly admitted in appellees’ brief. The governing New Jersey law and the overwhelming majority of reported cases categorically support the principle. Hodge v. Travelers Fire Ins. Co., 16 N.J.Super. 258, 263, 84 A.2d 552; Krieg v. Phoenix Ins. Co., Ct.E. & A., 116 N.J.L. 467, 474, 185 A. 21; St. Paul Fire & Marine Ins. Co. v. Bachmann, 285 U.S. 112, 116, 52 S.Ct. 270, 76 L.Ed. 648; Patriotic Ins. Co. v. Franciscus, 8 Cir., 55 F.2d 844, 847; Royal Exchange Assurance of London v. Thrower, D.C.Ga., 240 F. 811, 814, affirmed, 5 Cir., 246 F. 768, 772; North British Mercantile Ins. Co. v. Union Stock Yard Co., Ky.Ct.App., 120 Ky. 465, 87 S.W. 285, 287; Commercial Union Fire Ins. Co. v. Capouano, 55 Ga.App. 566, 190 S.E. 815, 816, affirmed, Ga.Sup.Ct, 185 Ga. 303, 194 S.E. 521; Schaffer v. Hampton Farmers’ Mutual Fire Ins. Co., 183 Minn. 101, 235 N.W. 618; Smith v. Penn Township Mutual Fire Ass’n, 323 Pa. 93, 99, 186 A. 130; Bitonti v. National Liberty Ins. Co., 96 Pa.Super. 521.
It follows that the judge in his charge should have instructed the jury that, in addition to what he stated to be admitted control, defendants must also prove knowledge of the increased hazard in the plaintiff-insured in order for the jury to decide against the plaintiff if they found that the hazard had been increased. What the court had said earlier in the charge as to “knowledge” was at best confusing and inadequate in view of the later instruction that it was merely necessary to find either knowledge or control.
Despite the able and conscientious effort of the district judge to have this difficult case disposed of fully and fairly, plaintiff has been inadvertently deprived of his day in court. He was entitled to that as a matter of right. He did not forfeit that right. He should be allowed a new trial on the merits of his cause of action.
. The majority opinion also holds that the ° jury verdict, among other things, means “ * * * that this damage increased the hazard of fire to the knowledge of the plaintiff and that its correction was within his control.” Unfortunately that conclusion is erroneous as has been demonstrated. The jury was not told that they must find knowledge and control but that a finding of either of those elements, coupled with a holding that the hazard had been increased, defeated the plaintiffs claim.