Boyd v. Aetna Insurance Company, Civ. No. 431.

• Decision Date: 03 October 1960
• Docket Number: Civ. No. 431.
• Citation: Boyd v. Aetna Insurance Company, 192 F.Supp. 435 (S.D. Fla. 1960)
• Parties: C. C. BOYD, Sr., Plaintiff, v. AETNA INSURANCE COMPANY, Hartford, Connecticut, a corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

192 F. Supp. 435

C. C. BOYD, Sr., Plaintiff, v. AETNA INSURANCE COMPANY, Hartford, Connecticut, a corporation, Defendant.

Civ. No. 431.

United States District Court S. D. Florida, Ocala Division.

October 3, 1960.

Walter Warren, Leesburg, Fla., for plaintiff.

Gurney, McDonald & Handley, Orlando, Fla., for defendant, Aetna Insurance Co.

SIMPSON, District Judge.

This cause having been tried by the Court, without a jury, the Court, pursuant to Rule 52(a) F.R.Civ.P., 28 U.S. C.A., makes the following

Findings of Fact.

1. The plaintiff, C. C. Boyd, Sr., is a citizen of the State of Florida, and the defendant, Aetna Insurance Company, is a corporation, incorporated under the laws of the State of Connecticut, with its principal place of business therein. The matter in controversy exceeds the sum of $10,000.

2. On July 17, 1958, the defendant issued to plaintiff its policy (No. S39 24 48) of fire insurance in the amount of $12,500 on plaintiff's dwelling, located on State Road 19 between Groveland, Lake County, Florida, and U. S. Highway 27, about six miles north of Groveland. Under the same policy, defendant insured the furniture and personal property which were the contents of said dwelling. The amount of said coverage, with subsequent endorsements, was $5,000. This location was a rural, "unprotected" area, and the premium charged recognized this factor of risk.

3. On August 12, 1959, the insured dwelling burned and all the contents were totally destroyed. The dwelling, purchased by plaintiff as a small cabin in 1957, and extensively rebuilt by him, was of concrete block with an asphalt roof. At the time of its destruction its value was in excess of the $12,500 policy amount. All premiums due had been paid at the time of the fire.

4. About a week before the fire, probably on August 7th or 8th, plaintiff's wife left by bus on a visit to North Carolina. In the week preceding the fire plaintiff was seen moving furniture in a small truck to his nearby packing house; by his admission at least three such trips were made. On the 12th, plaintiff was planning to leave on a trip with a friend to Tennessee. Finding his car battery weak, he called for assistance and the car was serviced by Mr. Story, who in addition to running a service station, was chief of the volunteer fire company in Groveland. No fire was apparent at this time. Plaintiff was able to leave on his trip by 3:00 p. m. or shortly thereafter. The fire was reported by a neighbor at about 3:30 p. m. and the Groveland volunteer fire company responded to the call.

5. When the firemen arrived they looked through all windows and found no flames, but only wisps of smoke escaping through ventilators beneath the eaves. They saw only a small amount of furniture. At this point the fire could have been extinguished easily except that the firemen were deterred from entering the house by several signs on the doors which warned: "Beware of trap gun in this House." Thereafter the firemen retired, sought instruction, and were ordered not to attempt any entry. After a short wait they left the scene and the entire house eventually burned by about 5:45 p. m. The Court finds that but for the presence of the signs the damage to building and contents would have been slight, probably less than $500. The adjustor, Spencer, who settled about 200 fire losses monthly in this section, testified that 60% of such losses were $300 or less, and that only 10% exceeded $5,000.

6. The "trap gun" signs had been placed on the house in several places by plaintiff and were handwritten in pencil on ordinary unruled note paper about 5" × 7", thus requiring occasional replacement. Plaintiff had used similar signs in the past, to the knowledge of some few persons in the vicinity. Plaintiff testified that the signs were intended as a bluff for burglars, but it was not widely known that no trap guns were really within the house. The existence of the signs and their purpose was unknown to the defendant insurance company. No notification about the signs had ever been made to the Chief of the fire company or his assistant, although both were widely known as such in the locale.

7. While plaintiff's wife estimated the contents of the house to be between $6,000 and $7,000 in value, (listing the cost a year or so earlier at $7,418.90), an experienced adjustor, after an examination of the premises and the ashes on August 25th, testified that only a small portion of the declared furniture and effects appeared to have been present and destroyed by the fire. Based on this, and the fact that plaintiff had recently removed at least three truckloads of furniture from the house, the Court finds the value of the contents destroyed by the fire not to exceed $3,000.

8. Because the fire caused complete destruction, and because the signs that were posted prevented anyone from entering before the destruction was complete, the Court finds that the cause or origin of the fire is unknown.

9. Since the loss, plaintiff has made proper demand for payment under the policy, and defendant has declined to pay. Wherefore, plaintiff instituted this suit on December 7, 1959, in the Circuit Court of the Fifth Judicial Circuit of the State of Florida, and the same was timely removed to this Court by defendant on December 29, 1959. The defendant bases its defense on two grounds, contending (a) that coverage under the policy was suspended by the action of plaintiff in placing the signs on the house and thus increasing the hazard, and (b) that the signs, not the fire, were the direct cause of the loss. Should plaintiff be entitled to recover, defendant further asserts that he is not entitled to the full amount of the policy covering the contents of the house.

10. There is a pending controversy in the state courts between plaintiff and the First National Bank and Trust Company of Eustis, Florida, in which plaintiff claims to have fully satisfied the mortgage by payment to one Kilpatrick, the former cashier of the bank. Public announcement of Kilpatrick's absconding was made August 10, 1959, the fire involved here occurred August 12, 1959, and on August 28, 1959, Boyd first made a demand upon the bank for satisfaction of the mortgage. For...