Lamarche v. Granite State Fire Ins. Co.

• Decision Date: 04 February 1958
• Citation: Lamarche v. Granite State Fire Ins. Co., 138 A.2d 674, 101 N.H. 210 (N.H. 1958)
• Parties: Roland A. LAMARCHE, also known as Ronald A. Lamarche, v. GRANITE STATE FIRE INSURANCE COMPANY.
• Court: New Hampshire Supreme Court

Page 674

138 A.2d 674

101 N.H. 210

Roland A. LAMARCHE, also known as Ronald A. Lamarche, v. GRANITE STATE FIRE INSURANCE COMPANY.

Supreme Court of New Hampshire.

Argued Dec. 3, 1957.

Decided Feb. 4, 1958.

Craig & Craig, William H. Craig, Jr., Manchester, for plaintiff.

Sheehan, Phinney, Bass, Green & Bergevin and Frederick W. Branch, Gerard O. Bergevin, Manchester, for defendant.

WHEELER, Justice.

At pre-trial it was stipulated that the defense was that the fire had been set by the insured or somebody engaged by him or acting with his knowledge or consent.

On February 18, 1954, the plaintiff acquired title to the property involved in this action situated in New Boston consisting of a house with six finished rooms on the first floor, and a barn, and approximately twenty-five acres of land on which were over one hundred fruit trees. The house was wired for electricity and the barn was in good condition. The property was subject to a mortgage of $1,923.72. After acquiring title, the plaintiff increased the insurance by two thousand dollars, making a total of sixty-five hundred dollars of fire insurance then in effect. In addition to the New Boston property, the plaintiff owned two apartment houses in Manchester which he planned to rent.

Considering all the plaintiff's evidence as true and construing it most favorably to the plaintiff, it could be found that on the morning of March 14, 1954, the plaintiff was living on Mast Road in Manchester about eight miles from his property in New Boston, and between 6:00 and 6:30 he loaded his trailer with various articles of furniture and parts to be used in repairing the furnace in the New Boston property, attached it to his 1950 Cadillac automobile, and proceeded to New Boston. He parked the car in the driveway in plain view of the highway, unloaded the trailer, went into the house and started a fire in the fireplace, placing a screen in front of it, and commenced to clean the premises. It was the first time he had ever started a fire in the fireplace. The fireplace smoked and caused his eyes to smart. He remained in the house for about three-quarters of an hour and then left to go home because it was snowing. At that time the fire was in 'embers' and there appeared to be no danger of a conflagration. He unhooked his trailer because the road was slippery and proceeded north about a quarter of a mile to the 'spring' where he inquired if he could proceed up the hill, or Mountain Road, to return to Manchester. He tried to make the hill but had to back down and take another road, arriving home about 9:00 a. m. At about 11:00 o'clock his sister phoned that his property had burned. He returned to New Boston and found his place entirely consumed by the fire.

The plaintiff had last visted the property about a week before the fire to bring some household articles and make the place more livable for the expected residence of his father who had moved in his bed, some clothing and fifteen to twenty dollars worth of canned goods.

On the day of the fire several witnesses observed plaintiff's Cadillac car in his yard. Within minutes after the plaintiff left to return to Manchester, smoke was observed pouring out of the roof, and the fire was widespread within the house around the floors and walls. There was evidence that the fire was not discovered by neighbors until approximately 9:45 a. m.

The question raised by the defendant's exceptions to the denial of its motions for a nonsuit and directed verdict is 'whether on the evidence any verdict could be found for the plaintiff.' Chabot v. W. H. McElwain Company, 79 N.H. 230, 231, 107 A. 642. 'In passing upon these motions 'the Court was obliged to consider the evidence for the plaintiff as true and to construe all the evidence most favorably to the plaintiff.' Shimkus v. Caesar, 95 N.H. 286, 287, 62 A.2d 728, 729.' Leonard v. City of Manchester, 96 N.H. 115, 117, 70 A.2d 915, 917; Carr v. Merrimack Farmers Exchange, Inc., 101 N.H. 84, 85, 133 A.2d 497. The defendant's contention that the evidence compelled a finding that the fire was set by the plaintiff does not require acceptance, although there was circumstantial evidence from which the jury could have found that it was set by the plaintiff. If the jury believed the plaintiff's testimony, it could likewise believe that the fire resulted from a defective fireplace or chimney, in view of the evidence that flames or smoke were first seen...