Miele v. Boston Insurance Company
| Decision Date | 27 March 1961 |
| Docket Number | No. 16537.,16537. |
| Citation | 288 F.2d 178 |
| Parties | Joseph MIELE, a/k/a Joseph Cusumano, Appellant, v. BOSTON INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edward J. Lawson, of Friedman & Slonim, Clayton, Mo., filed brief and made oral argument for appellant.
John H. Cunningham, Jr., of Willson, Cunningham, McClellan & Gunn, St. Louis, Mo., filed brief and made argument for appellee.
Before WOODROUGH, VAN OOSTERHOUT and MATTHES, Circuit Judges.
The judgment here appealed from adjudicated the issues and disposed of two cases duly consolidated for trial.
In No. 59 C 57, Boston Insurance Company sued Joseph Miele a/k/a Joseph Cusumano (hereafter referred to as Miele) and his wife Mary Miele, in the District Court for the Eastern District of Missouri, for a declaratory judgment of non-liability upon three fire insurance policies issued by it; one for a period of three years from October 3, 1957, issued to the defendants or either of them against loss and damage by fire in the sum of $10,000 to the building located at 8503 Natural Bridge Boulevard, St. Louis County, Missouri; one to Joseph Miele for a period of three years from October 3, 1957, against loss and damage by fire in the sum of $10,000 to the contents of the building; and one to Joseph Miele for a period of one year from January 24, 1958, against loss and damage by fire in the sum of $3,000 resulting from business interruption at the same premises. It was alleged in the complaint that the defendants were the owners of the building; that Miele was the owner of the contents; that on or about February 18, 1958, the building and contents were damaged by an explosion and fire and the business operations, which were carried on by Miele, were caused to cease and the resulting claims were made under the policies for damage to the building in the sum of $16,602.62; for damage to the contents in the sum of $9,258.21; and for loss by business interruption in the sum of $3,000; that the explosion and fire were of incendiary origin and intentionally set by defendant Miele for the purpose of endeavoring to collect the proceeds of the policies and thereby defraud the plaintiff; and that said facts are denied by defendants.
It was further alleged that each of the policies contained provisions among other things, that if the insured be guilty of any fraud or false swearing in connection with any claim, whether before or after a loss, plaintiff shall have no liability to the insured in connection therewith, and also that the insured shall submit to examination under oath in connection with any claim asserted under the policies.
The defendant was so examined and was found guilty of fraud and false swearing in answers given to material questions relating to his claims; to wit, ownership of the property and business, knowledge of the cause of loss, connection of the defendant therewith and other matters not now relevant. Also that the policies were procured by Miele through fraudulent misrepresentation and concealment of material facts in that he falsely and fraudulently represented that he was an honorable honest business man owning and operating a legitimate and successful business venture and with a clean record in all respects; that the building was of the reasonable market value of $30,000 (there being two additional fire insurance policies of $10,000 each written on the building in the name of his wife by other companies); that the contents of the building were of the reasonable market value of at least $16,000; and that his business operations were profitable and were resulting in earnings and not losses.
That all of said matters were false and the truth was that Miele was not licensed to engage in the business being conducted in the building; that he was an ex-convict having a long criminal record of arrests and convictions for law violations of serious nature; that the building and contents were worth less than represented; and that the business conducted therein operated at a loss. That these matters were material to the risk and if plaintiff had known the true facts, it would not have issued either of the policies and since they were procured by fraud, they are void and unenforcible.
In No. 59 C 60, Joseph Miele sued Boston Insurance Company in the state court to recover the proceeds under the three policies for the same loss. Miele's action was removed to the United States District Court as there was federal jurisdiction by reason of diversity of citizenship and sufficient amount involved in both cases. The two cases were consolidated for trial and were tried before Judge Weber sitting without a jury. Mrs. Miele disclaimed interest and was dismissed as a defendant. Judge Weber made general findings on the issues in both cases in favor of the insurance company and against Miele, and filed a memorandum opinion embodying particular findings that Miele had participated in the burning of the insured property and had procured the policies by misrepresentation and fraud.
Declaratory judgment of non-liability on the policies was accordingly entered in the action brought by the insurance company and judgment of dismissal in the case brought by Miele. He appeals.
The contentions for reversal are (1) that there is not a scintilla of evidence that appellant participated in the alleged arson and (2) that the Court erred in its findings and conclusion that representations of appellant were fraudulent or material.
It appears from the evidence in accord with the findings of the Court that at about midnight on Monday, February 17, 1958, a violent explosion occurred in the premises at 8503 Natural Bridge, St. Louis County, Missouri, where appellant operated his tavern and restaurant. A filling station operator was working on a car across the street facing the tavern, who testified that the explosion was of such force that the roof on the east side of the building was raised upward as though it was hinged in the center and then settled down into the building which instantly became enveloped in flames of an orange color. Another eye witness, about three quarters of a block away, heard the "extra loud" explosion and said it was accompanied by a bright flash of yellowish fire. Police officers answering the fire alarm described finding glass and other objects blown to a distance of about a hundred feet. The night was so cold that the water from the firemen's hose froze in the ruins of the building which were examined by county police officers the following morning. They found evidence of separate fires and behind the bar at two sites of burning, t...
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