GENERAL ACC. FIRE & LIFE ASSUR. CORP. v. Schero
Citation | 160 F.2d 775 |
Decision Date | 19 May 1947 |
Docket Number | No. 11764.,11764. |
Parties | GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, v. SCHERO et al. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
G. L. Reeves and Calvin Johnson, both of Tampa, Fla., for appellant.
Morrice S. Uman and R. W. Shackleford, both of Tampa, Fla., for appellees.
Before SIBLEY, WALLER, and LEE, Circuit Judges.
Plaintiff below was the insurer of the defendants below against burglary. Between Saturday afternoon, February 7, 1942, when defendants closed their sponge warehouse, and Monday morning, February 9, burglars removed a quantity of sponges from the warehouse. Plaintiff sued to determine its liability on the policy for the loss. On a former trial defendants obtained judgment for the loss on their cross-claim. We reversed the judgment on appeal1 and sent the case back for a new trial. We defined the issues on retrial to be:
(1) Did the loss occur before or after the effective time of cancellation of the policy by the plaintiff?
(2) Was the defense of failure to keep books and accounts under an "iron safe clause" waived?
(3) Was the defense of failure to keep books and accounts under the "iron safe clause" properly made out?
Before the second trial the defendants and counter-claimants abandoned their claim of waiver. The effective time of the cancellation was 12:01 a. m., Sunday, February 8, 1942. The court below submitted to the jury these two issues for their consideration: (1) Whether the defendants sustained a loss by burglary prior to 12:01 a. m., Eastern Standard Time, February 8, 1942; and (2) whether defendants had complied with the provision of the policy relating to keeping books and records. On the issue of the time of the loss, the court directed the burden of proof was on the defendants; on the other issue the court directed the burden was on the plaintiff to establish that the books and records did not substantially comply with the policy provision.
The plaintiff, after all evidence was in, moved for a directed verdict. This motion was overruled. The jury returned a verdict for defendants and counter-claimants, and judgment on the verdict was entered for the amount of the loss. The plaintiff then moved for judgment notwithstanding the verdict. This motion was denied. The plaintiff thereupon appealed.
On this appeal the plaintiff contends:
Since we are reversing the judgment for the first reason suggested by the plaintiff, we need not consider the second reason.
In a case over which a federal court has jurisdiction based upon diversity of citizenship between the parties, the law of the State in which that court sits governs the question of the sufficiency of the evidence to support the submission of a claim to the jury.2
In Mutual Life Insurance Co. of New York v. Hamilton3 we had occasion to discuss the law of Florida governing the sufficiency of circumstantial evidence for its submission to the jury. We said:
* * * * * * * *
"* * * It is not necessary that this Court concur in the facts as found by the jury, but merely to determine that a jury question was involved in a controversy of evidence, inferences, and presumptions as to the effect of which the minds of reasonable men might differ, and in the jury's solution of which we cannot say there was no substantial support."
The substance of this holding has been reaffirmed by the Supreme Court of Florida4 in these words:
Applying the Florida law to the facts before us, we believe that a jury question was not involved "in a controversy of evidence, inferences, and presumptions as to the effect of which the minds of reasonable men might...
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Smith v. General Motors Corporation, 15357.
...and the rule as to circumstantial evidence there stated was cited with approval in the subsequent case of General Acc. Fire & Life Assur. Corp. v. Schero, 5 Cir., 160 F.2d 775, in which this court reversed the judgment of the trial court for failing to direct a verdict on circumstantial evi......
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McNamara v. American Motors Corporation, 16347.
...question of fact for the jury to decide." 4 Mutual Life Ins. Co. of New York v. Hamilton, 5 Cir., 143 F.2d 726; Gen. Fire & Life Assurance Corp. v. Shero, 5 Cir., 160 F.2d 775; King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858; Smith v. General Motors Corp., 5 Cir., 227 F.2d 210,......