Liverpool & L. & G. Ins. Co. v. N. & M. Friedman Co.

• Decision Date: 30 November 1904
• Docket Number: 1,320.
• Citation: 133 F. 713
• Parties: LIVERPOOL & L. & G. INS. CO. v. N. & M. FRIEDMAN CO.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F. 713

LIVERPOOL & L. & G. INS. CO. v. N. & M. FRIEDMAN CO.

No. 1,320.

United States Court of Appeals, Sixth Circuit.

November 30, 1904

Crane Norris & Drew, for plaintiff in error.

Knappen Kleinhans & Knappen, G. A. Wolf, and J. H. Tatem, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This case grew out of the destruction early on the morning of July 18, 1901, of a four-story brick building in Grand Rapids Mich., known as the Luce Block. The defendant in error conducted a department store in the building, and the policy sued on was upon his stock and fixtures. The occurrence resulting in the destruction of this building and its contents was before us in the case of Phoenix Insurance Company v. Luce, 123 F. 257, 60 C.C.A. 655, in which we affirmed a judgment on a policy of insurance on the building. In that case, as in this, it was a question whether there was a fire in the building before it fell; and we held that the testimony tending to prove there was such fire was both material and substantial, and justified the trial judge in declining to direct a verdict for the defendant upon the ground there was no evidence warranting a submission of the case to the jury.

The policy sued on contained, among others, the following conditions:

'This company shall not be liable for loss caused directly or indirectly, by invasion, insurrection, riot, civil war or commotion * * * or (unless fire ensues, and in that event for damage by fire only) by explosion of any kind.'

'If a building or any part thereof fall except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.'

In this case, as in the Phoenix Case, the defendant contended there was no fire in the building before it fell, and it fell from structural weakness due to certain alterations then going on. There was a verdict for the plaintiff; the jury finding, in answer to questions, that there was a fire burning in the building before and at the time it fell, and that no part of it fell except as the result of fire.

The case went to the jury about 2 o'clock on the afternoon of the day before Thanksgiving Day. At 5 o'clock that afternoon the trial judge sent for the jury, and, no agreement having been reached, permitted them to separate and go to their homes for Thanksgiving; cautioning them not to talk to any one or permit any one to talk to them about the case, and directing them to return at 2 o'clock on the afternoon of the day following Thanksgiving and resume their deliberations. This was done in the absence of counsel, and, when counsel for the defendant were advised of it, they took an exception, which was allowed.

It is claimed, first, the court erred in refusing to give certain charges; and, second, in permitting the jury to separate after the submission of the case.

1. As to the refusals to charge. The second and third requests, which were refused, were as follows:

'Second. Such a fire you are not authorized to find by conjecture, simply because there were combustible materials in the building at the time, nor because there were conditions in the building at the time it fell which might possibly have produced a fire.

'Third. The plaintiff, to recover, must show by a preponderance of the evidence that there was a fire consuming the building or its contents before it fell. His showing that there might have been such a fire is not sufficient to authorize plaintiff's recovery.'

The charge given by the court in this case was substantially that approved by us in the Phoenix Case. The court clearly charged the jury that it was incumbent upon the plaintiff, by a preponderance of the evidence, to satisfy them that fire existed in the building before it fell, and that in determining this question they should consider all the evidence bearing upon the subject; that if they were not convinced, and could not say from the evidence, that there was fire in the building before it fell, then their verdict must be for the defendant. This was sufficient. It advised the jury they were to consider not simply the matters referred to in these requests, but abl the evidence, in determining whether there was or was not a fire in the building before it fell. For the court to have mentioned certain evidence, and instructed are jury they were not to conjecture from it that there was a fire in the building, would not only have discredited the evidence mentioned, but led the jury to believe there was no other evidence upon that point. Now we held in the Phoenix Case that, looking at the entire record, the evidence tending to show there was fire in the building before it fell was both material and substantial. The same evidence is present in this case. A finding based upon such evidence could not, even prospectively, be treated as a mere conjecture. The requests were properly refused.

The sixth request was as follows:

'Sixth. An explosion, to render defendant liable, must be caused by fire in the building or its contents. The exploding of gas by a spark, there being no fire at the time consuming the building or contents, would not render defendant liable.'

The claim of the plaintiff, as shown by the record, was that the building fell as the result of a progressive fire, and not from explosion, unless caused by such progressive fire. While the jury was instructed that an explosion caused by a progressive fire would be a fire loss, within the meaning of the policy, it was also instructed that there could be no recovery, even...