Hall v. Merrimack Mut. Fire Ins Co.

• Decision Date: 02 May 1939
• Citation: 6 A.2d 172
• Parties: HALL v. MERRIMACK MUT. FIRE INS CO. and three other cases.
• Court: New Hampshire Supreme Court

6 A.2d 172

HALL

v. MERRIMACK MUT. FIRE INS CO. and three other cases.

Supreme Court of New Hampshire. Carroll.

May 2, 1939.

Exceptions from Superior Court, Carroll County; Lorimer, Judge.

Four actions by Sarah E. Hall against the Merrimack Mutual Fire Insurance Company, the Orient Insurance Company, the New York Underwriters Insurance Company, and the Atlas Assurance Company, Limited, respectively, upon four fire insurance policies. Verdicts for plaintiff and defendants were denied motions for new trial. On defendants' exceptions.

Judgments for plaintiff in first two actions, new trials in others.

Actions, on fire insurance policies. Trial by jury and verdicts for plaintiff. Two of the policies insured a house and barn, one its general contents, and one some special books. The actions were defended on the grounds that the fire was set by the plaintiff's procurement or with her knowledge and consent, that one Seth W. Norwood was the real owner of the property, and that the plaintiff attempted to defraud the insurers both before and after the loss. Motions for directed verdicts were denied, and the defendants excepted. One also took exception to evidence and one to the charge. All excepted to the denial of their motions for a new trial on the ground of newly discovered evidence. The opinion sufficiently states the facts. Transferred by Lorimer, J.

Cooper & Hall and Burt R. Cooper, all of Rochester, for plaintiff.

Thorp & Branch and Frederick W. Branch, all of Manchester, for defendants.

ALLEN, Chief Justice.

All defendants take the position that the evidence was insufficient to show that the fire was not set by someone engaged therefor by the plaintiff or acting with her knowledge and consent. Pursuant to the charge to which no objection was taken, the jury were entitled to find otherwise. It was not unreasonable to infer a situation which may be thus summarized. The plaintiff was the mistress of one Norwood, who established her in the house which the fire destroyed and on whom she depended for her support. While he is referred to as her other self, more appropriately he was her executive manager. He had general charge of her affairs and in her business matters she was under his guidance. For some time before the fire his ability to support her waned, but not his interest in her. Outside the home and its contents her personal resources were negligible.

The fire was on March 1, 1937. The plaintiff had left the home the preceding November, going to Portland, Maine, where Norwood lived, and hiring an apartment, with no definite plans for returning, and continuing to occupy the apartment until after the fire. In this situation, with the pressure on Norwood to provide her with funds for her maintenance, a conclusion was fairly to be drawn that he planned and caused the fire to be set, with no participation of the plaintiff in sharing incendiary guilt with him in any way. Under such a view he acted, not as her agent, but as a stranger, with the motive to obtain funds for her, in his own stress and strain to furnish them, and with no disclosure to her of his undertaking.

It is true that during the seven months preceding the fire the insurance on the building and their contents was increased from $2700 to $4400, and that the plaintiff participated in some measure in seeking the increase. But the business was all done by Norwood and he made the required payments for the premiums and vacancy permits. Nearly all of the increase was on personal property. During the period the plaintiff received from Norwood the special books which were insured for $500, while the insurance on the general contents of the buildings was increased from $700 to $1800. The plaintiff testified that she had bought household furnishings during her occupancy of the house at a cost altogether of $2000, late in the summer before the fire took an inventory of all its contents, and was then prompted to take out more insurance upon them. The policy insuring them for $1800 was issued in November, a few days after the expiration of the one for $700. So far as the plaintiff took part in bringing about the increase of insurance, she is not to be charged thereby as matter of law with conspiring with Norwood to have the fire or with notice of his planning therefor. Her explanation for desiring more insurance was not necessarily to be rejected. Its doubtful validity was the jury's problem.

The claim that the plaintiff had no insurable interest in the property insured calls for slight discussion. If there is evidence that she held it in her name, but for Norwood as the real and sole owner, the contrary evidence that it all belonged to her, in beneficial interest as well as legal title, is ample. So far as he paid for it or contributed towards its maintenance, it was consistent with the relations between them that it was to be hers by their mutual understanding and agreement, and in his concern for her material welfare.

It is asserted that the plaintiff testified falsely at the trial, and thereby attempted to defraud the defendants. If under her cross-examination with reference to her relations with Norwood she knew her answers were false, a motive to defraud thereby is not a conclusion which must be drawn. Her interest to shield herself and others from open disclosure in respect to matters not considered by her to be connected with the fire might well account for her dishonesty on the subject.

Another claim of the plaintiff's perjury relates to her testimony of a talk with the mortgagee of the home. The mortgage note called for quarterly payments of principal, none of which had been made, although the note had been in force for two years. The collateral issue whether the mortgagee was satisfied to let the payments be deferred or asked that they be met bore remotely on any principal issue. If a demand for payment had some tendency to add to the economic pressure weighing on the plaintiff, and thus add to the evidence of a motive to have a fire, it is not demonstrated that she deliberately testified falsely to induce belief in the absence of motive. And it is fairly conceivable that the mortgagee as a woman talking with another woman as her debtor may not have been insistent in her demand, with a conclusion that the plaintiff, in some confusion of recollection, did not intentionally falsify.

The plaintiff testified in cross-examination that after the fire she had not attempted to ascertain what her income had been for the few years before the fire, immediately afterwards testifying that she had. So far as appears, she had no reliable records from which to show the sources and amounts of her income and she had no accounting mind. It is consistent from her apparently contradictory testimony that she had given up an initiated and desultory effort. She testified that it was "a very hard thing to do." If it is assumed that one of her statements was knowingly false, it is not an enforced conclusion that it was made as an attempt to defraud. The inquiry into her income was in connection with her claim of purchases of household furnishings for the home. But it is not a...