On Motion for Rehearing
In its motion for rehearing, Cambridge Mutual contends that we erroneously deemed a finding by the trial court on the occupancy issue in support of the judgment. It argues that it had no burden to request an issue on occupancy or to object to its omission because the trial court had granted an instructed verdict against the Newtons on this issue and did not rescind that ruling until after the jury had returned its verdict on the issues submitted.
We cannot agree. We recognize that the record is confusing because the submission of issues to the jury was inconsistent with the previous ruling on the motion for instructed verdict. The issues submitted would have been immaterial if the evidence had shown as a matter of law that the house was not “occupied by the Insured principally for dwelling purposes” at the time of the fire because, on that premise, the loss was not covered by the policy. The occupancy issue was not a defensive matter, but was essential to the Newtons’ recovery on the policy. Before the charge was submitted to the jury, Cambridge Mutual was on notice that the jury’s answers, whether favorable or unfavorable, would be a potential basis for judgment. At that point, Cambridge Mutual was not justified in relying on the court’s previous ruling on the motion for instructed verdict as obviating any objections to the charge submitted or any request for omitted issues. We must assume from the present record that the ruling on the motion for instructed verdict was withdrawn by the court when the charge was submitted, although, of course, the possibility remained that the court might render judgment notwithstanding the verdict, if favorable to the Newtons.
Cambridge Mutual contends also that no finding can properly be deemed to have been made in support of the judgment because occupancy was a defensive issue rather than one essential to plaintiff’s recovery. We cannot agree. The requirement of occupancy was in the insuring clause of the policy, and, therefore, was a fact that the Newtons had the burden to prove, as Cambridge Mutual seems to have recognized in preparing the special issues which it now asserts should have been submitted. On the other hand, if occupancy were a defensive issue, Cambridge Mutual waived it by failing to make a proper request before the charge was submitted to the jury.
On the other matters raised in the motion, we adhere to the views expressed in our original opinion.
Motion for rehearing overruled.