Fire Ass'n of Philadelphia v. Weathered
| Decision Date | 06 January 1932 |
| Docket Number | No. 6298.,6298. |
| Citation | 54 F.2d 779 |
| Parties | FIRE ASS'N OF PHILADELPHIA et al. v. WEATHERED et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wm. C. Thompson, of Dallas, Tex., for appellants.
W. L. Eason and W. W. Naman, both of Waco, Tex., for appellees.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
Appellee, Weathered, brought two suits in a state court against appellants to recover on two policies of fire insurance, each for $4,000, for the destruction by fire of a dwelling in Waco, Tex. Each policy contained a clause making it payable to appellee, the Mortgage Bond Company, as interest might appear, and that company intervened to assert its rights. After removal to the federal court the cases were consolidated and tried as one. The policies were identical in form, and each contained a clause rendering it void if the dwelling should be vacant for a period exceeding 10 days or unoccupied for a period exceeding 30 days. The building was occupied by J. B. Stone, with his wife and family, as a tenant until September 15, 1930, when he moved out. The fire occurred on October 17, 1930, more than 30 days after the Stones had moved out. The proof of loss contained the statement that the building was occupied by the owner through an agent and employee who resided therein, without naming him. Appellants defended on the ground that the condition of the policies as to vacancy had been breached. At the close of the evidence, the District Court directed a verdict for plaintiffs for the face value of the policies, and on this verdict a single judgment was entered, payable $3,950.45 to the Mortgage Bond Company, the balance to Weathered. No question is raised as to the amount payable to the Mortgage Bond Company. However, error is assigned to the action of the court in directing a verdict for Weathered.
Weathered's recovery depends entirely on the uncorroborated testimony of one Sonnie Mosely. This witness testified, in substance, that Weathered told him, if he would go and stay in the house, he would make it all right with him; that he went in on September 20th and stayed until October 14th; that he took a small folding cot, a pair of blankets, and a couple of quilts; that he slept in the front room on 18th street and put his cot and bedclothes in the closet during the daytime; that he was there only at night, going there after dark and leaving about daylight in the morning; that he used a flashlight to get about the house, and did...
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