Bankers Fire & Marine Ins. Co. v. Bukacek

• Decision Date: 08 September 1960
• Docket Number: 7 Div. 371
• Court: Alabama Supreme Court
• Parties: , 84 A.L.R.2d 672 BANKERS FIRE AND MARINE INSURANCE COMPANY, v. James BUKACEK.

Page 157

123 So.2d 157

271 Ala. 182, 84 A.L.R.2d 672

BANKERS FIRE AND MARINE INSURANCE COMPANY, v. James BUKACEK.

7 Div. 371.

Supreme Court of Alabama.

Sept. 8, 1960.

R. Foster Etheredge and Spain, Gillon & Young, Birmingham, for appellant.

John H. Martin, Pell City, for appellee.

COLEMAN, Justice.

Defendant appeals from judgment for plaintiff entered on a jury verdict in action at law on policy of fire insurance. The policy insures plaintiff '* * * against all Direct Loss By Fire * * * Except As Hereinafter Provided, to the property described hereinafter * * *,' and further provides:

'This Company shall not be liable for loss by fire * * * caused, directly or indirectly, by: * * * (h) order of any civil authority except acts of destruction at the time of and for the purpose of preventing the spread of fire, provided that such fire did not originate from any of the perils excluded by this policy * * *.'

The property insured was a wooden, four room, one-story frame house, one room being made of logs, located two miles west of Pell City. Earl C. Snarr who was employed by the United States, the sheriff of St. Clair County, and others discovered a still in the house. It is not shown that plaintiff had any knowledge of or connection with the still. He testified that prior to the fire he had leased the property to one C. M. Hanna. Snarr was 'in charge of that raid.' Forty sticks of dynamite were placed in the still and exploded. The explosion destroyed the still and blew off part of the top and sides of the house, but 'very little of it' was destroyed by the explosion. Fire followed the explosion and the house burned. Both parties appear to concede that explosion of the dynamite caused the fire.

The still was a whiskey still with 'boiler type cooker' and ten or eleven 'vats' which were 'around ten feet long and about four or five feet wide, and four feet high.' Capacity was 'close to two thousand gallons a week.'

By agreement of both parties, the following was admitted in evidence:

'Showing

"Earl C. Snarr if present in Court would testify as follows:

'Earl C. Snarr was on the date of February 8, 1956, a United States revenue officer employed by the Internal Revenue Service of the United States Treasury Department; that on or before said date, he, with assistants discovered an illegal and illicit still within the dwelling house of the insured described in the policy sued on; that on said date in the course of his duty he seized the still and he placed dynamite at and about the still in the dwelling house to destroy same so as to prevent the use thereof and to render it useless; the dynamite was set off and an explosion occurred blowing up the still and causing damage to the dwelling house by explosion and ensuing fire."

The defense relied on this court is that the fire was caused by order of civil authority, and, therefore, under policy provision (h) quoted above, defendant is not liable. The assignments of error argued are that the court erred: (1) in refusing the affirmative charge with hypothesis requested in writing by defendant, (2) in overruling defendant's motion for new trial on the ground that the verdict is not sustained by the great preponderance of the evidence, and (3) in giving certain portions of the oral charge.

Defendant argues that the proximate cause of the loss was the act of Snarr in destroying the still and that his act was authorized by the following federal statute:

'When a judgment of forfeiture, in any case of seizure, is recovered against any distillery used or fit for use in the production of distilled spirits, because no bond has been given, or against any distillery used or fit for use in the production of spirits, having a registered producing capacity of less than 150 gallons a day, for any violation of law, of whatever nature, every still, doubler, worm, worm tub, mash tub, and fermenting tub therein shall be so destroyed as to prevent the use of the same or of any part thereof for the purpose of distilling; and the materials shall be sold as in case of other forfeited property. In case of seizure of a still, doubler, worm, worm tub, mash tub, fermenting tub, or other distilling apparatus, for any offense involving forfeiture of the same, where it shall be impracticable to remove the same to a place of safe storage from the place where seized, the seizing officer is authorized to destroy the same only so far as to prevent the use thereof, or any part thereof, for the purpose of distilling (except in the case of a registered distillery). Such destruction shall be in the presence of at least one credible witness, and such witness shall unite with the said officer in a duly sworn report of said seizure and destruction, to be made to the Secretary or his delegate, in which report they shall set forth the grounds of the claim of forfeiture, the reasons for such seizure and destruction, their estimate of the fair cash value of the apparatus destroyed, and also of the materials remaining after such destruction, and a statement that, from facts within their own knowledge, they have no doubt whatever that said distilling apparatus was set up for use for distillation, redistillation or recovery of distilled spirits and not registered, or had been used in the unlawful distillation of spirits, and that it was impracticable to remove the same to a place of safe storage. Within 1 year after such destruction the owner of the apparatus so destroyed may make application to the Secretary or his delegate for reimbursement of the value of the same; and, unless it shall be made to appear to the satisfaction of the Secretary or his delegate that said apparatus had been used in the unlawful distillation of spirits, the Secretary or his delegate shall make an allowance to said owner, not exceeding the value of said apparatus, less the value of said materials as estimated in said report; and if the claimant shall thereupon satisfy the Secretary or his delegate that said unlawful use of the apparatus had been without his consent or knowledge, he shall still be entitled to such compensation, but not otherwise. In case of a wrongful seizure and destruction of property under this section, the owner thereof shall have right of action on the official bond of the officer who occasioned the destruction for all damages caused thereby. Aug. 16, 1954, 9:45 a. m., E.D.T., c. 736, 68A Stat. 687.' Title 26 U.S.C.A. § 5623 (Emphasis supplied.)

The record does not disclose any judgment of forfeiture. The only order of any civil authority in this case was an order:

'* * * to destroy the (still) only so far as to prevent the use thereof, or any part thereof, for the purpose of distilling * * *.'

In 1924, in ruling on a motion to suppress evidence of federal agents who had destroyed a quantity of intoxicating liquor, the Judge of a United States District Court wrote as follows concerning the progenitor of § 5623, Title 26 U.S.C.A., to wit:

'In the first place, it may be well to consider whether the agents have any authority to destroy property seized on a valid search warrant. Under the statutes in force at the time of the enactment of the prohibition law, internal revenue officers had a very limited right to destroy property in case of seizure. This right was limited to the destruction of the still and certain other property, described in the statute, designed for the manufacture of liquor having a less producing capacity than 150 gallons per day and which was less than $500 in value, provided the offense involved forfeiture of the property and that it was impracticable to remove the same to a place of safe storage, and the officer was authorized to destroy the same only so far as to prevent the use thereof for the purpose of distilling. But in all such cases the statute required certain formalities respecting report and appraisal under oath (none of which were complied with by the federal agents in the instant case), and the owner was entitled to reimbursement for the value unless it was made to appear to the satisfaction of the officials that the apparatus had been used in unlawful distillation. R.S. § 3332 (Comp.St. § 6129). * * * .' United States v. Cooper, D.C., 295 F. 709, 710.

The district court decided that 'the act of the agent in destroying the liquor was entirely without any warrant of law and constituted a trespass,' and that 'the evidence sought to be suppressed was obtained by federal agents through an illegal search and seizure and is therefore inadmissible.' The provision in the statute in 1924 limiting destruction on seizure where removal is impracticable to stills producing less than 150 gallons per day and worth less than $500 has now been removed.

The statute gave no authority to Snarr to destroy the house. Assuming that it was impracticable to remove the distilling apparatus to a place of safe storage and that the agent was authorized to destroy it, can we hold as a matter of law in this case that he acted to destroy the still 'only so far as to prevent the use thereof,' when he exploded forty sticks of dynamite in the still? We are of opinion that we cannot so hold.

Appellant argues that '* * * The proof of the case is that while in the course of his duty he seized and destroyed the still so as to prevent the use thereof. This evidence is uncontradicted. There is a presumption that a public official properly and regularly discharges his duties * * * in accordance with the law and the authority conferred on him and that he will not do any act contrary to his official duty or omit anything which such duty may require. (Citations omitted) The presumption prevails until it is overcome by clear and convincing evidence to the contrary. 31 C.J.S. Evidence Section 146b. We speak of this presumption only because the appellee no doubt will be heard to say that Agent Snarr acted illegally. We do not think that even if there was proof that he acted illegally or negligently that such proof...