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GREENBERG v. AETNA INSURANCE COMPANY (11/14/67)

decided: November 14, 1967.

GREENBERG
v.
AETNA INSURANCE COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1965, No. 1279, in case of Jack J. Greenberg v. Aetna Insurance Company and United States Fidelity and Guaranty Company.

COUNSEL

Loyal H. Gregg, with him White, Jones and Gregg, for appellants.

Melvin Schwartz, with him Cooper, Goodman & Schwartz, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 427 Pa. Page 495]

This is an action instituted by the insured on two separate fire insurance policies to recover the loss resulting from a fire in a shopping center where he owned and operated a drug store. At trial the jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon the defendants appeal.

In their answers to the complaint, the defendant-insurance companies denied liability on the contracts because the fire "was the result of incendiarism, a fact well known to the plaintiff who participated therein, and . . . such participation and failure to disclose this information was the result of concealment and misrepresentation of the plaintiff, thereby voiding the said policy."*fn1 At trial, evidence was introduced from which the jury could find that the fire involved was of an incendiary nature, and that the plaintiff arranged for the arsonists to set the fire. The plaintiff did not contest that the fire was incendiary (his counsel admitted this to be the fact), but he vehemently denied any knowledge of or participation in the crime.

In his charge the trial judge instructed the jury that if the plaintiff arranged for or instigated the fire or conspired with "others to defraud the insurance company by presenting a false claim", he could not recover on the policies, and that the burden of establishing

[ 427 Pa. Page 496]

    these allegations was on the defendants "by evidence that is clear, precise and indubitable." The instructions as to the standard of proof required were erroneous.

Where an individual is charged with and tried for a crime, before he may be convicted the Commonwealth must establish his guilt beyond a reasonable doubt. In civil cases, however, the extreme caution and the unusual degree of persuasion required in criminal cases do not obtain. Even though the result may impute a crime, the verdict should follow the preponderance of the evidence, Somerset County Mutual Fire Ins. Co. v. Usaw, 112 Pa. 80, 4 A. 355 (1886). As the court stated therein, "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 . . . The act affirmed is an incident, a fact, to be proved like other pertinent facts." Id. at 90, 4 A. at 357.

It has been advocated in many jurisdictions that wherever in a civil case a criminal act is charged as a part of the case, the rule as to the standard of proof controlling in a criminal case should apply. However, this position has been repudiated in most instances. See Wigmore on Evidence (3d ed. 1940), Vol. IX, ยง 2498. The rule generally followed in most jurisdictions in such situations is that the criminal act need only be established by a fair preponderance of the evidence. See Wigmore on Evidence, supra. This was the rule adopted in Pennsylvania nearly a century ago in a case where, like here, recovery was sought on a fire insurance policy and the defense of arson was pleaded to defeat the claim. Somerset County ...


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