Bennett v. Niagara Fire Ins. Co.

• Decision Date: 30 January 1961
• Docket Number: No. 17,17
• Citation: 126 So.2d 718
• Parties: Crawford W. BENNETT, et al., Plaintiff and Appellee, v. NIAGARA FIRE INSURANCE COMPANY, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 718

126 So.2d 718

Crawford W. BENNETT, et al., Plaintiff and Appellee, v. NIAGARA FIRE INSURANCE COMPANY, Defendant and Appellant.

No. 17.

Court of Appeal of Louisiana, Third Circuit.

Jan. 30, 1961.

Rehearing Denied Feb. 21, 1961.

Certiorari Denied April 7, 1961.

Bienvenu & Culver, by P. A. Bienvenu, New Orleans, for defendant-appellant.

Joe J. Tritico, Lake Charles, for plaintiff-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

Plaintiff, Crawford W. Bennett, filed this suit to recover the face amount of three policies of fire insurance issued by the defendant, totaling the sum of $17,500, alleging that the dwelling and its contents, covered by the policies, were totally destroyed. Plaintiff also prayed for penalties and attorneys' fees. As a result of an exception of non-joinder filed by defendant, the petition was amended to include Mrs. Gladys Bennett, wife of the said Crawford W. Bennett as a party plaintiff, because she was named as an insured in one of the policies. Mutual Life Insurance Company of New York was also named as an additional party plaintiff because it held a mortgage on the land and improvements and was named as payee in a standard mortagage clause attached to one of the policies.

The defendant admitted the existence of the policies but denied liability to the plaintiffs, Crawford W. Bennett and his wife, Gladys Bennett, alleging that they fraudulently set fire to the insured property. In the alternative, defendant alleged that the damage caused by the fire to the building did not exceed the sum of $3,410.32 which amount defendant offered to pay Mutual Life Insurance Company of New York.

On the request of plaintiffs, the case was tried before a jury and consumed ten days beginning March 31, 1958. By a vote of nine to three the jury brought in a verdict in favor of the plaintiffs allowing $7,000 for damage to the building and $3,000 for damage to its contents. In order to apportion the jury's award of $10,000 among the plaintiffs in accordance with their respective interests the trial judge signed a judgment in favor of plaintiffs, Crawford W. Bennett, and Mutual Life Insurance Company of New York for the sum of $5,670.58 with legal interest on the sum of $2,260.26 thereof from the date of judicial demand until paid and in favor of the plaintiffs, Crawford W. Bennett and Mrs. Gladys Bennett for the sum of $4,329.42 with legal interest from date of judicial demand until paid. No motion for a rehearing or for a new trial was filed.

From the above described judgment defendant has brought this appeal. Plaintiffs have answered the appeal praying for an increase in the amount of the award.

The issues presented to this court for determination are primarily factual. However, before we discuss the facts, we deem it appropriate to set forth the law from the case of Wells v. Twin-City Fire Insurance Company, 1960, 239 La. 662, 119 So.2d 501, 502, which is the most recent expression of our Supreme Court regarding the proof necessary to establish an insurer's defense of arson:

'Plaintiff and the defendants agree, as is shown by the briefs of their respective counsel that the law governing cases of this nature is correctly enunciated in Sumrall vs. Providence Washington Insurance Company, 221 La. 633, 60 So.2d 68, 69 as follows: 'Inasmuch as the defense is arson, the burden rested upon the insurer to establish, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. It is well settled that the insurer need not prove its case against a plaintiff beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire. (Here numerous cases are cited.) Accordingly, the questions presented in matters of this sort are answered by the particular facts of the controversy. * * *'

'Applicable here also are the following observations contained in Barbari v. Firemen's Insurance Company, La.App., 107 So.2d 480, 485 (a case decided by the Court of Appeal of the First Circuit and in which a writ of review, applied for by the defendant insurance companies, was denied by this court), to-wit: 'It would appear that mere suspicion is not sufficient to show that a fire was of incendiary origin, the facts from which inference or presumption are drawn, must be established in evidence and the inference or presumption to which these proven facts give rise, must be strong and almost inevitable. They must be weighty, precise and consistent.'

'Accordingly, we must examine the facts of the instant case and determine whether they establish convincingly (1) that the fire was of incendiary origin and, if so, (2) that the plaintiff was responsible for it.'

In the Wells case our Supreme Court reversed the judgment of the lower court and held that the evidence was insufficient to establish either that the fire was of incendiary origin or that the plaintiff was responsible for it. In the present case, as in the Wells case, the evidence is entirely circumstantial on both the issue of incendiary origin and the issue of plaintiff's responsibility for the fire. Under the above quoted authorities we must therefore, in addressing ourselves to these two factual issues, determine whether or not the circumstantial evidence is of such import that it will sustain no other reasonable hypothesis but that the fire was of incendiary origin and the plaintiffs were responsible for it.

We have very little difficulty in finding that the evidence was sufficient to establish that the fire was of incendiary origin. The record shows that the dwelling was a five room frame building located in the City of Lake Charles, Louisiana. The fire was discovered at approximately 2:15 a.m. on the morning of May 25, 1957 by Mr. Thomas Petty, a neighbor of the plaintiffs, while driving past the dwelling toward his home. Mr. Petty testified that he first saw a small flame on the inside of the right front room (the southwest side of the house) and that in the next second the whole house seemed to flare up for just a moment and after that he didn't see any fire except the same small flame in the front room. Mr. Petty went to his home nearby and called the fire department.

Captain Elmer Peshoff of the Lake Charles Fire Department was in the first fire truck to arrive. Captain Peshoff testified that when they drove the truck in, the principal fire appeared to be in the front room and they immediately put a hose through the front window and extinguished the fire there. Next they went around the house looking for other flames and located a fire in the rear room on the south side. The fire was burning near the floor immediately under the window where they were unable to extinguish it with the water hose and they therefore went back and entered the house through the front door. Captain Peshoff testified that as they went through the kitchen toward the rear he smelled kerosene. They went on to the back room where they extinguished the fire there under the window. The mattresses and bed clothes in the rear room were smouldering and they threw them out. Captain Peshoff testified that the window fan in the combination living and dining room was plugged in and the window was open.

Having smelled an odor of kerosene, Captain Peshoff called District Fire Chief Cleighton Nope who came immediately to the fire. District Chief Nope testified that he also smelled the odor of kerosene all over the house and that he found two throw rugs which had a strong odor of kerosene so he called Chief Gus Stitzlein of the Lake Charles Fire Department. Chief Stitzlein testified that he arrived at the scene shortly thereafter and that he entered the dwelling and smelled kerosene. The Chief testified that there appeared to be several places in which the fire had originated and he opined that due to the kerosene fumes the fire had flashed from the front bedroom into the living room and dining room burning the wallpaper and other inflammables but not burning the wood.

Chief Stitzlein procured the services of Mr. Garland Barras, the Base Fire Chief at the Lake Charles Air Force Base, who qualified during the trial of this case as an expert on the cause and origin of fire. Chief Stitzlein and Mr. Barras went to the dwelling and conducted an investigation there within the next day or two after the fire. Mr. Barras testified that in his opinion the fire had originated in seven different and unconnected places in the house as follows:

1. At the baseboard in the middle room.

2. On the floor below the window in the rear bedroom.

3. In the linen closet of the bathroom.

4. In the closet on the floor in the front bedroom.

5. In the closet in the middle room or office.

6. Near the baseboard in the combination living room-dining room.

7. Near the baseboard in the middle room or office behind the filing cabinet.

Chief Stitzlein and his secretary, Joe Shreve, who were also present during this investigation, testified that they saw these seven different and unconnected places of origin of fire. Pictures filed in evidence showing five of these places clearly demonstrate that fire burned sufficient to char the wood in each one of these relatively small areas.

In addition to the overwhelming evidence that there were seven distinct, unconnected and different places of origin of fire there is positive evidence that kerosene was used. Captain Peshoff testified that he smelled kerosene all over the house when he first entered it. District Fire Chief Nope testified to the same effect. Fire Chief Stitzlein testified that he smelled kerosene and found the two rugs which had a very strong odor of kerosene. On Saturday morning when Chief Stitzlein and Mr....