Decker v. Somerset Mutual Fire Insurance , 1877 Me. LEXIS 160 ( 1877 )

Walton, J.

This case is before the law court on. motion and exceptions. It is an action on an insurance policy against fire. One ground of defense is that the fire was willfully set by the plaintiff himself, or by his procurement.

I. The presiding judge instructed the jury that in order to establish this defense, they must find that it had been reasonably established; that is, that it had been established to their reasonable satisfaction; that they were to require more evidence than they would to establish payment of a note, or prove an account in set-off; that they would consider the gravity of the charge, and require stronger proof of its truthfulness than they would in ordinary cases arising out of matters of contract. Such was the substance of the charge upon this point; and it is claimed that it must have given the jury to understand that something more than a mere preponderance of evidence was necessary to establish the defense, and was therefore erroneous. We think the objection is not sustained. Certainly the judge did not say in so many words that anything more than a preponderance of evidence was necessary. Nor do we think it is implied in what he did say.

To create a preponderance of evidence, the evidence must be sufficient to overcome the opposing presumptions as well as the opposing evidence. Presumptions, like probabilities, are of different degrees of strength. To overcome a strong presumption requires more evidence than to overcome a weak one. To fasten upon a man a very heinous or repulsive act requires stronger proof than to fasten upon him an indifferent act, or one in accordance with his known inclinations. To fasten upon a man the act of willfully and maliciously setting fire to his own buildings, should certainly require more evidence than to establish the fact of payment of a note, or the truth of an account in set-off; because the improbability or presumption to be overcome in the one case is much stronger than it is in the other. Hence it can never be improper to call the attention of the jury to the character of the issue, and to remind them that more evidence should be required to establish grave charges than to establish trifling or indifferent ones. Such an instruction does not violate the rule that in civil suits a preponderance of evidence is all that is required to maintain the affirmative of the issue ; for, as already stated, to create a preponderance of evidence, it must be sufficient to overcome the opposing presumptions as well as the opposing evidence. Ellis v. Buzzell, 60 Maine, 209. Knowles v. Scribner, 57 Maine, 495.

II. The defendant also excepts to the admission in evidence of a paper, purporting to be the proof of loss required by the terms of the policy, without first proving its due execution. The excep - tions do not show that this objection was open to him. For aught that appears the paper may have been declared on or mentioned in some specification filed by the plaintiff', in which case it would be necessary for the defendant to make the affidavit required by rule X of this court, or he would not be in a position to call for proof of its execution; and it does not appear that such an affidavit was made. No error being made affirmatively to appear, the exception must be overruled. Reed v. Canal Corporation, 65 Maine, 53.

III. The exceptions state that the plaintiff offered oral testimony to prove the interest of a certain mortgagee, and that he paid the premium for the insurance ; and that this testimony was admitted, notwithstanding the defendant objected to- it; but the exceptions do not state the purpose for which the evidence was offered, nor the ground of objection to it. There are many purposes for which such evidence would be admissible, and it not being apparent that it was admitted for an illegal one, this exception must also be overruled.

IV". The motion for a new trial on the ground that the verdict is against the weight of evidence must also be overruled. We are not satisfied that it is against the weight of evidence.

Motion and exceptions overruled.

Appleton, C. J., Dickerson, Barrows, Daneorth and Libbey, JJ., concurred.