GENERAL ACC. FIRE & LIFE ASSUR. CORP. v. Schero

Citation160 F.2d 775
Decision Date19 May 1947
Docket NumberNo. 11764.,11764.
PartiesGENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, v. SCHERO et al.
CourtUnited 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.

LEE, Circuit Judge.

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:

"1. That as against both the direct and circumstantial evidence that the burglary in question was carried out on Sunday night, February 8 (after cancellation), the evidence adduced by appellee, consisting of circumstances only, was too flimsy to authorize the jury to speculate that the loss occurred before 12:01 A. M. February 8, 1942; and

"2. That the evidence now disclosed that the books and records kept by appellees were insufficient to disclose the loss with reasonable certainty, hence the contract provision relating to that subject exonerated appellant."

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:

"The plaintiffs have relied wholly upon inferences which they draw from circumstantial evidence to prove death by suicide on the 29th day of December, 1928. There is no direct testimony of death at any time or in any manner. Since the opinion by Judge Sibley in the case of Mutual Life Ins. Co. of New York v. Zimmerman, supra, 5 Cir., 75 F.2d 758, the Florida rule that circumstantial evidence relied upon in a civil case must not only be consistent with the theory that authorizes recovery but must fairly and reasonably exclude any other explanation of the facts, has been modified by King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858; Stigletts v. McDonald, 135 Fla. 385, 186 So. 233; and Fireman's Fund Indemnity Co. v. Perry, 149 Fla. 410, 5 So.2d 862, 863. In the last-cited case the Supreme Court of Florida said:

"`In the case of Reed et vir. v. American Ins. Co. of Newark, New Jersey, 128 Fla. 549, 175 So. 224, 225, we stated the rule to be applied in testing the sufficiency of circumstantial evidence in civil cases, as follows:

"`"In civil cases the preponderance of evidence required, where circumstantial evidence is relied on as the method of proof, is a preponderance of all reasonable inferences that might be drawn from the circumstances in evidence to prove the principal fact sought to be established sufficient to outweigh all other contrary inferences. King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858."

"`In Stigletts v. McDonald, 135 Fla. 385, 186 So. 233, 235, we said:

"`"Circumstantial evidence must as a general rule be of such a conclusive nature that it is not reasonably susceptible of two equally reasonable inferences."'

"It, therefore, is not the rule in Florida now that circumstantial evidence in a civil case must exclude every other reasonable hypothesis than the one proposed to be proven. It is sufficient now if the circumstantial evidence amounts to a preponderance of all reasonable inferences that can be drawn from the circumstances in evidence to the end that the evidence is not reasonably susceptible of two equally reasonable inferences.

"Do the inferences which tend to support the theory of a prompt dissolution outweigh the inferences which support merely a disappearance? Does the presumption of death under the circumstances outweigh the presumption against suicide?

* * * * * * * *

"* * * 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: "Upon a motion for directed verdict made at the close of the plaintiff's case the evidence given on behalf of the plaintiff must be considered as true. Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903. For the purpose of the motion the moving party admits not only the facts adduced, but every conclusion favorable to his adversary fairly and reasonably inferable therefrom. Florida Motor Lines, Inc. v. Bradley, 121 Fla. 591, 164 So. 360; Talley v. McCain, 128 Fla. 418, 174 So. 841; Russell v. Atlantic Coast Line R. Co. 129 Fla. 535, 176 So. 778; Hastings v. Taylor, 130 Fla. 249, 177 So. 621; Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright, 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish liability, and nothing from which liability may be fairly and reasonably inferred, the motion for directed verdict should be granted. Sec. 54.17, Florida Statutes 1941 F.S.A.; Crandall, Florida Common Law Practice, pp. 305, 306, § 208, and cases there cited."

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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2 cases
  • Smith v. General Motors Corporation, 15357.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 25 Noviembre 1955
    ...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......
  • McNamara v. American Motors Corporation, 16347.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 23 Julio 1957
    ...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,......

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