Dunn v. Springfield Fire & Marine Ins. Co
| Citation | 33 So. 585,109 La. 520 |
| Decision Date | 21 June 1902 |
| Docket Number | 13,911 |
| Parties | DUNN et al. v. SPRINGFIELD FIRE & MARINE INS. CO |
| Court | Louisiana Supreme Court |
Rehearing denied February 2, 1903.
Appeal from civil district court, parish of Orleans; Fred D. King Judge.
Action by M. F. Dunn & Bro. against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.
Howe Spencer & Cocke (Farrar, Jonas & Kruttschmitt and Fenner Henderson & Fenner, of counsel), for appellant.
McCloskey & Benedict and Frank McGloin, for appellees.
This case is for the second time before the court. At the November term 1900 (see 104 La. 31, 28 So. 931), it was found necessary to reverse the judgment of the trial court, which had been in favor of the plaintiffs, and to remand the cause for further proceedings.
The reason for this action was error on part of the trial judge in excluding evidence on a certain line of inquiry, offered by defendants.
The case went back and the excluded evidence was received. But the trial judge arrived at the same conclusion as he had on the first trial, and awarded a judgment in favor of plaintiffs. Defendant appeals.
The suit is one upon open policies of insurance against fire, and the defense charges the plaintiffs with fraud and false swearing, particularizing under seven heads as follows, to-wit:
(1) By persistently and systematically attempting to cause, increase and inflate the loss suffered by them.
(2) By attempting, both before and after the fire, to conceal the origin and prevent the discovery of the fire.
(3) By obliterating and keeping from inspection books, papers, documents, records and facts necessary and material to prove their actual loss.
(4) By making, or causing to be made, false and fictitious entries in their books.
(5) By claiming in their proofs of loss excessive or total loss and damage on property not injured, or only slightly injured.
(6) By claiming large sums for damage to property admittedly worthless.
(7) By grossly overvaluing and overestimating the value of and loss to the property set forth in detail in the schedules annexed to the proofs of loss.
The testimony excluded on the first trial, which caused the remanding of the case, related to the second specification noted above -- the one charging plaintiffs with attempting to conceal the origin and prevent the discovery of the fire.
The trial judge, at the close of the examination, announced from the bench that his understanding was the case had been remanded to take testimony under certain allegations in the answer charging, in substance, that plaintiffs had burned the building, and that the evidence had been confined to that sole issue. He then declared that no testimony adduced had connected the plaintiffs with complicity in the destruction of the building by fire; that the charges were not sustained; and that he would enter up the same judgment in the case as he had on the first trial.
The record of this cause consists of two enormous transcripts aggregating 1,458 pages of type-written matter, of which about 1,400 pages are devoted to the testimony of some 40-odd witnesses called to the stand. Besides the transcripts, numerous books, documents, exhibits, etc. were brought up in the original.
M. F. Dunn & Co., doing business as stationers, bookbinders and lithographers, procured insurance aggregating $ 50,500 in 23 different insurance companies.
This was taken out on stock of merchandise, fixtures, furniture, machinery, presses, lithographic stones and engravings, etc., represented to be of the total value of $ 67,300.
Defendant company issued 2 of the 23 policies, aggregating $ 3,500, covering pro rata the several items of property insured. The suit is to recover the company's proportion of the loss sustained by the fire which occurred on October 22, 1898.
Following the fire plaintiffs presented proofs of loss to the companies in which they claimed that the sound value of the property insured was $ 62,669.36 and the damage thereto was $ 48,465.25.
The policies of insurance contained a clause that in event of disagreement as to amount of loss sustained by the insured, the same should be ascertained by competent appraisers, the assured and insurer each selecting one, and the two so chosen to select a competent umpire.
Under agreement, with reservation of all rights to both parties, an appraisement, under this clause, was had of the stock of merchandise on hand at the time of the fire, resulting in fixing its value at the sum of $ 14,280.17 and damage thereto at $ 10,924.87.
Plaintiffs sought to have this appraisement extended to all the other property covered by the policies, but defendant and the other companies did not respond to this.
The four-story brick building in which plaintiffs did business was so badly damaged by the fire that the owners, in order to its repair or rebuilding, required removal of the remains of the stock, furniture, fixtures, machinery, presses,...
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