Fire Ass'n of Philadelphia v. Weathered

• Decision Date: 10 January 1932
• Docket Number: No. 6639.,6639.
• Citation: 62 F.2d 78
• Parties: FIRE ASS'N OF PHILADELPHIA et al. v. WEATHERED.
• Court: U.S. Court of Appeals — Fifth Circuit

62 F.2d 78 (1932)

FIRE ASS'N OF PHILADELPHIA et al. v.WEATHERED.

No. 6639.

Circuit Court of Appeals, Fifth Circuit.

December 8, 1932.

Rehearing Denied January 10, 1932.

Will C. Thompson and Robert Lee Guthrie, both of Dallas, Tex., for appellants.

W. L. Eason and W. V. Dunnam, both of Waco, Tex., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

This is an appeal from a judgment rendered in favor of the assured in a consolidated action on two fire insurance policies.The only question is whether the dwelling which was insured was vacant for a period of ten days before the fire.If it was vacant during that period, each policy by its terms became void; but if it was not, the judgment is unassailable.On a former trial the only testimony to the effect that the dwelling was occupied was given by Sonny Mosely; other witnesses who lived nearby testified that, during the period of time involved, they did not see any one in the house, or any lights at night, or any other sign of occupancy.A judgment based on a directed verdict for the assured was reversed, it being the opinion of this court that the case was one for the jury.54 F.(2d) 779.On the trial from which this appeal is taken the assured corroborated Mosely's testimony, and the case was submitted to the jury who found for the assured upon evidence which, if believed, was sufficient to sustain their verdict.The fire occurred on October 17, 1930, and the assured and Mosely both testified that the house had been occupied by the latter less than ten days before.The assignments of error are based entirely upon rulings of the district judge, who sustained objections to questions asked Mosely on cross-examination seeking an admission from him that he had been convicted in 1884 of the theft of...