This appeal arises from an action instituted by appellees George H. and Rose T. Galbraith to recover under a fire insurance policy issued to them by appellant Hartford Fire Insurance Company ("Hartford") for damage to their home which occurred as a result of a fire on June 21, 1968. Hartford's defense was arson, specifically that George Galbraith was responsible for the setting of the fire and that appellees were therefore precluded from recovery under the terms of the policy.
The jury returned a verdict in the sum of $22,000 in favor of the Galbraiths. Hartford's motions for judgment n.o.v. and, in the alternative, a new trial were both denied. This appeal followed.
Hartford contends, inter alia, that it was prejudicial error for the District Court to allow plaintiffs' counsel to question his client, George Galbraith, concerning whether or not criminal charges had been filed against him as a result of the fire. Although defense counsel promptly objected, the Court permitted Galbraith to respond. He stated that no such charges had been filed.
In asserting an affirmative defense to a suit brought to compel payment on an insurance policy, New Jersey law is clear that the carrier must prove that the loss falls within the policy's exclusion. Morie v. New Jersey Manufacturers Indemnity Ins. Co., 48 N.J. Super. 70, 76, 137 A.2d 41, 43 (1957); Advance Piece Dye Works, Inc. v. The Travelers Indemnity Co., 64 N.J. Super. 405, 411-413, 166 A.2d 173, 176-178 (1960).
Here Hartford's case was grounded on its claim that Galbraith had indeed set fire to his home. In attempting to counter Hartford's charge of arson, referred to in its opening to the jury, Galbraith's counsel asked his client on direct examination:
"Q. Mr. Galbraith, do you have any knowledge of how the fire started, personal knowledge?
"Q. Were you charged with any crime?
"MR. GREENBERG: I object, Your Honor.
"MR. GREENBERG: That's irrelevant and immaterial.
"THE COURT: I think, under the circumstances Mr. Greenberg, of your opening and your allegations, I think it is material and I ...