Maravas v. Am. Equitable Assur. Corp. of N.Y.

• Decision Date: 01 February 1927
• Citation: Maravas v. Am. Equitable Assur. Corp. of N.Y., 82 N.H. 533, 136 A. 364 (N.H. 1927)
• Parties: MARAVAS v. AMERICAN EQUITABLE ASSUR. CORPORATION OF NEW YORK.
• Court: New Hampshire Supreme Court

136 A. 364

MARAVAS

v. AMERICAN EQUITABLE ASSUR. CORPORATION OF NEW YORK.

Supreme Court of New Hampshire, Hillsborough.

Feb. 1, 1927.

Exceptions from Superior Court, Hillsborough County; Doe, Judge.

Assumpsit by George Maravas against the American Equitable Assurance Corporation of New York.Verdict for plaintiff for a part of the sum sued for, and plaintiff and defendant bring exceptions.Defendant's exceptions overruled; plaintiff's exceptions sustained in part; new trial nisi.

Assumpsit upon a policy of fire insurance.Trial by a jury, which returned three special verdicts, upon which a verdict was directed by the court in favor of the plaintiff.

The plaintiff held the defendant company's policy, in the New Hampshire standard form, for the sum of $3,000 upon his stock in trade, which consisted principally of "Feta" cheese, so called, packed in 97 large barrels and 80 small barrels, and stored in the cellar of a building in Manchester.This policy contained the following provisions:

"This policy shall be void * * * if the insured shall make any attempt to defraud the company either before or after the loss."

"In case difference of opinion shall arise as to the amount of any loss under this policy * * * unless the company and the insured shall within fifteen days after notice of the loss mutually agree upon referees to adjust the same either party may upon giving written notice to the other apply to a justice of the Supreme Court who shall appoint three referees, one of whom shall be thoroughly acquainted with the kind of property to be considered and their award in writing after proper notice and hearing shall be final and binding on the parties."

During the night of August 21—22, 1921, two fires occurred in this building, and the cellar was flooded.The plaintiff testified that for two or three days before the fire he had been at work changing the brine upon the cheese, and that he had left the stoppers out of the barrels.Consequently, he claimed, dirty water found its way into the barrels.Both parties agreed that, in order to meet the situation created by the fire, the cheese ought to have been repacked at once in new barrels.

A few days after the fires an agent of the defendant offered the plaintiff a sum slightly in excess of the estimated cost of repacking the cheese in full settlement of his loss.This offer the plaintiff refused.The cheese was never repacked, and, subject to defendant's exception, the plaintiff was allowed to testify that he had no money to buy barrels and other supplies necessary for this purpose.Upon September 24th the parties agreed upon an appraisal, and upon October 5th the appraisers unanimously made the following report:

"At this present time the cheese is of no value, the condition of which we cannot tell at this time was due to the fire or not."

At the close of the evidence the court made the following rulings, to which the plaintiff excepted:

"(1) There is no evidence from which it can be found that the defendant caused, induced, or was responsible for, the plaintiff's failure to repack his cheese after the fire.

"(2) There is no evidence from which it can be found that the plaintiff's stock in trade, had the cheese been properly repacked after the fire, would have been of less value than it was immediately before the fire.

"(3) If the financial condition of the plaintiff prevented his repacking of the cheese after the fire, that fact is immaterial on the question of the defendant's liability for the subsequent deterioration of the cheese."

Three special issues were submitted to the jury, which were answered as follows:

"(1) Has the plaintiff made any attempt to defraud the defendant either before or since the fire?No.

"(2) What was the value of the plaintiff's stock in trade, consisting of cheese with the kegs and brine in which it was stored immediately before the fire?$2,260.

"(3) What would have been the expense of properly repacking plaintiff's cheese after the fire?$416."

Whereupon the court directed a verdict for the plaintiff for $416, with interest, and the plaintiff excepted.

Transferred upon the defendant's exceptions to the argument of plaintiff's counsel, and upon the plaintiff's exceptions to the denial of his motion for a directed verdict for the value of the cheese before the fire; to the rulings made by the court at the close of the evidence; to the denial of his requests for instructions; and to the order directing a verdict for the sum of $416.Further facts appear in the opinion.

James A. Broderick and Warren Howe & Wilson, all of Manchester, for plaintiff.

Tuttle, Wyman & Starr and L. E. Wyman, all of Manchester, for defendant.

BRANCH, J.During the argument of plaintiff's counsel to the jury the following proceedings took place, Mr. Broderick arguing:

"And the value that the insurance company itself placed upon the cheese that was in that cellar on the 23d day of April, 1921, was $3,000.

"Mr. Wyman: I except to that statement.

"Mr. Broderick: $3,000 on stock in trade, consisting principally of cheese while contained in two-story frame building situate at 44 Spruce street.That is the statement of this insurance company, and they collect a premium on it at $3,000.

"Mr. Wyman: The ground of my exception— "Mr. Broderick: He may take an exception, but I don't think he ought to argue it at this time.

"The Court: Make a note of it, and it may be taken up at the end of the argument.

"Mr. Broderick: That is what he paid them $43.50 for as the premium on the value of that cheese at that time."

No further reference to this portion of the plaintiff's argument appears in the record.No cause for setting aside the verdict of the jury upon any of the special issues submitted to it is to be found in the foregoing proceedings.The record above set forth clearly indicates that no ruling as to the propriety of the argument was made by the presiding justice.Counsel were directed to make a note of the statements objected to, and to take them up with the court after the argument.At the conference which followed the argument, no mention of the foregoing passage was made, and no ruling of the court was ever obtained upon it.Consequently, under the rule laid down in Tuttle v. Dodge, 80 N. H. 304, 311, 116 A. 627, no question of law was raised for consideration here.

But it is unnecessary to rest the decision in this instance solely upon the above rule.It cannot be found that, when counsel used the foregoing language, he was stating a fact of which there was no evidence.The most that can be said of this argument is that he urged the jury to draw an unwarranted inference from the language of the insurance policy.The law in regard to arguments of this kind is well settled."Whether an inference can be drawn from the evidence is a question of law, and argument of counsel urging the jury to draw an inference not warranted by the evidence, furnishes no ground for setting aside the verdict"(Potter v. Moody, 79 N. H. 87, SS, 104 A. 889, 890;Voullgaris v. Gianaris, 79 N. H. 408, 109 A. 838;Gosselin v. Company, 78 N. H. 149, 97 A. 744;Turner v. Company, 75 N. H. 521, 77 A. 999;Mitchell v. Railroad, OS N. H. 96, 34 A. 674), "unless the court expressly or tacitly confirms his erroneous view"(Lafferty v. Houlihan, 81 N. H. 67, 77, 121 A. 92, 97;State v. Ketchen, 80 N. H. 112, 114 A. 20;Tuttle v. Dodge, 80 N. H. 304. 314, 116 A. 627;State v. Small, 78 N. H. 525, 530, 102 A. 883)."Such an error is correctible by the court in its charge to the jury; and it is the duty of the party against whom the erroneous rule operates to request the court to charge in accordance with the law; otherwise he is held to waive his objection."Voullgaris v. Gianaris, supra;Tuttle v. Dodge, supra;Potter v. Moody, supra; Caganaugh v. Railroad,

76 N. H. OS, 79 A. 694;Lane v. Manchester Mills, 75 N. H. 102, 71 A. 629.This rule furnished an additional reason why defendant's counsel should have followed the direction of the court, and called the statement in question to his attention at the end of the argument.

Later in the course of plaintiff's argument, the following proceedings took place, Mr. Broderick arguing:

"He was obliged, as a matter of reasonable care, to notify the company of what means he had, and I submit that, if he didn't do that, he would not have been doing what you or I or the average man would do under the circumstances.And so he said to the insurance company: This has got to be taken care of, and taken care of right off, or it will spoil, and I can't do it, because I haven't got the money.

"Mr. Wyman: I except to that statement.

"Mr. Broderick: We must have barrels; we must have milk; we must have help; and it has got to be done right off or that cheese will spoil."

After the jury had retired, counsel for the defendant asked the court to note the following exceptions to the argument for the plaintiff:

"Mr. Wyman: Mr. Broderick stated, and I except, that Maravas had testified that he told the insurance company that he had no means with which to take care of the cheese.My objection and exception is that there is no such evidence in the case; that the plaintiff at no time and no place testified that he ever communicated with the insurance company or its representatives the fact that he had no means to take care of the cheese.

"The Court: Do you wish to retract any of those statements, Brother Broderick?

"Mr. Broderick: No, your honor.

"Mr. Wyman: Please note that Mr. Broderick does not retract any of the statements objected to by the defendant."

From the foregoing extracts from the record it clearly appears that the statement of plaintiff's counsel that the plaintiff told the insurance company that he could not take care of the cheese because he had no money was called specifically to the attention of the court after the argument.The court then gave plaintiff's counsel an opportunity to withdraw the statement, which he...