Mineo v. The Eureka Sec. Fire & Marine Ins. Co.

• Decision Date: 03 October 1956
• Docket Number: 3909
• Citation: 125 A.2d 612,182 Pa.Super. 75
• Parties: Tom MINEO v. The EUREKA SECURITY FIRE & MARINE INSURANCE COMPANY The Royal Insurance Company, Ltd. (Appellant in No. 20), Northern Insurance Company of New York (Appellant in No. 21), The Milwaukee Mechanics Insurance Company (Appellant in No. 22).
• Court: Pennsylvania Superior Court

125 A.2d 612

182 Pa.Super. 75

Tom MINEO v. The EUREKA SECURITY FIRE & MARINE INSURANCE COMPANY (Appellant in No. 19),

The Royal Insurance Company, Ltd. (Appellant in No. 20), Northern Insurance Company of New York (Appellant in No. 21), The Milwaukee Mechanics Insurance Company (Appellant in No. 22).

No. 3909

Superior Court of Pennsylvania

October 3, 1956

Argued March 5, 1956

Appeals, Nos. 19, 20, 21, 22, Feb. T., 1955, from judgments of Court of Common Pleas of Lackawanna County, Sept. T., Nos 1431, 1432, 1433 and 1434, in case of Tom Mineo v. The Eureka Security Fire & Marine Insurance Company; Same v. The Royal Insurance Company, Ltd.; Same v. Northern Insurance Company of New York; Same v. The Milwaukee Mechanics' Insurance Company. Judgments reversed.

Actions of assumpsit. Before EAGEN, J.

Verdicts for plaintiff and judgments entered thereon. Defendants appealed.

Judgments reversed and motions of the defendants for judgments non obstante veredicto are granted.

John W. Bour, with him Carlon M. O'Malley, for appellants.

Eugent Nogi, with him Alex Marcus and Everett A Rosser, for appellee.

Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ.

OPINION

WOODSIDE, J.

We are faced here with the question of whether this Court should permit recovery from insurance companies for a fire loss, when this Court has already held that the insureds were properly convicted of procuring the burning of the property for which recovery is sought.

Joseph S. Tomaino and Thomas Preno were proprietors of a restaurant in Scranton which was destroyed by fire on October 17, 1948. The proprietors were convicted of criminally setting the fire and sentenced to the penitentiary. Their conviction was sustained by this Court in Com. v. Tomaino, 168 Pa.Super. 505, 79 A.2d 274 (1951).

Shortly before the fire, Tomaino and Preno purchased four fire insurance policies covering their restaurant. After they were arrested for causing the fire, they assigned their right, title and interest in and to these policies to Tom Mineo who had previously lent them money and had taken a chattel mortgage on the furnishings and fixtures of the restaurant. Thomas Mineo then brought suit against the four insurance companies to recover for the damage caused by the fire.

The insurance companies denied liability on the ground that the insureds had aided, counseled and procured the burning of the property and by reason of such fraudulent acts the policies were null and void.

At the trial the record of the insureds' conviction was admitted into evidence. Other evidence concerning their guilt was produced by the defendants, and the trial judge properly charged that if the insureds intentionally set the fire the plaintiff could not recover. The jury, however, returned a verdict against all of the defendants in the total amount of $3000.

The defendants then moved for a new trial on the ground that the verdict was against the weight of the evidence and for judgment non obstante veredicto on the ground that the conviction of the insureds was a bar to recovery under the policies. The court below dismissed both motions and directed judgments to be entered on the verdicts. Each of the four defendants appealed to this Court.

The assignee in an assignment of a fire insurance policy made subsequent to a fire stands in the identical position of the insured and his rights cannot rise above the rights of the insured. State Mutual Fire Insurance Company v. Roberts, 31 Pa. 438 (1858); Wilson to use v. Mutual Fire Insurance Co. of Montgomery County, 174 Pa. 554, 34 A. 122 (1896). Thus the legal question is whether an insured can recover for the damage caused by a fire he was convicted of criminally setting.

That the verdict was against the weight of the evidence is clear.

Although, ordinarily, the appellate courts will not reverse the court below for refusal to grant a new trial on the ground that the verdict was against the weight of the evidence, Barbano v. Barbano, 142 Pa.Super. 371, 16 A.2d 649 (1940), nevertheless, they have never abdicated their reviewing function in such cases, and where it appears that the jury's verdict was so contrary to the evidence as to shock one's sense of justice, a new trial will be granted. Londrino v. Equitable Life Assurance Society, 377 Pa. 543, 544, 545, 105 A.2d 333 (1954).

"A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion." Carroll v. Pittsburgh, 363 Pa. 436, 445, 84 A.2d 505 (1951). Here, however, there was convincing evidence that the insureds were guilty of criminally setting the fire and creating the loss for which they seek to recover. No evidence at all was produced by the plaintiff in whose favor the verdict was rendered to show that the insureds were not guilty of criminally causing the loss for which recovery is sought. The insureds, who were present at the trial, were not even called to deny that they were responsible for the loss. Where there is no conflicting evidence, and especially where no evidence at all is produced by the party in whose favor the verdict is rendered, the trial judge should not permit a capricious verdict to stand against uncontradicted testimony of witnesses whose veracity there is no apparent reason to doubt unless such testimony is in itself inherently incredible or contradictory. Elia v. Olszewski, 368 Pa. 578, 579, 84 A.2d 188 (1951).

The evidence submitted in this case concerning the fire was substantially the same as that which this Court held sufficient to establish beyond a reasonable doubt that the insureds were guilty of arson. The testimony was produced by disinterested persons whose credibility there is no reason to question.

The evidence was outlined in detail by Judge GUNTHER in Com. v. Tomaino, supra, and since a review of the evidence here would be but a repetition of what was written there, we shall not recount it in detail. It is sufficient to point out that the evidence established that there were four or five separate and unconnected fires at the same time in the insureds' kitchen of the restaurant; that gasoline soaked rags were found near the parts of the floor burned by these fires; that a hole had been out in a partition and rags soaked in gasoline placed in it; that although Tomaino stated to officers after the fire that he left the restaurant and arrived home about 1:30 A.M. and remained there until after the fire at 4 A.M., he was seen driving his automobile toward the restaurant about two or three blocks away at 2:30 A.M.; that the insureds were in extreme financial difficulties owing six months rent of $1800, $10,500 to banks, $1200 for groceries, $900 to a Mr. DeFazio and $7000 to the plaintiff; that although within a month of the fire they had authorized the sale of the restaurant, including the liquor license for $16,500, they were carrying $26,000 insurance on the property, purchased from different agents within three months of the fire.

There is no denial or contradiction of any of these facts. The verdict was capriciously rendered against uncontradicted testimony of credible witnesses. Aside from the evidence of the insureds' conviction, the other evidence of the insureds' guilt was overwhelming - enough to establish the fact beyond a reasonable doubt; much more than necessary to establish the fact by a mere preponderance of evidence.

Now add to the testimony of the numerous witnesses for the defendants, the record of the insureds' convictions which the court admitted into evidence and there is a much stronger case for the defendants.

In the charge to the jury the trial judge referred to the record of the convictions as persuasive evidence of the fact that the insureds were criminally responsible for the fire but not conclusive evidence of that fact. In the opinion of the court below the evidence of the convictions is referred to as "prima facie but not conclusive evidence" of the insureds' criminal responsibility for the fire. "Prima facie evidence" is sometimes used as equivalent to the notion of a presumption, putting upon the opponent the duty of producing evidence, and is sometimes used to represent the stage in a case where the proponent having the duty to produce some evidence in order to pass the judge to the jury has fulfilled that duty, satisfied the judge and may properly claim that the jury be allowed to consider his case.Wigmore on Evidence (3rd Edition), Vol. IX, Sec. 2494. If "prima facie evidence" would be used in the former sense by the court below then judgment non obstante veredicto should have been entered, as the plaintiff produced no evidence to overcome a presumption of the insureds' guilt. If used in the latter sense - if the evidence of the conviction alone was sufficient to permit the jury to find for the defendant - it emphasizes the degree of overwhelming uncontradicted evidence of the criminal responsibility of the insureds. At least a new trial should have been granted on the ground the verdict was against the weight of the evidence.

The common law principle that a person will not be permitted to benefit by his own wrong, particularly by his own crime prevents the insured from recovering on insurance policies for loss caused by his crime. Greifer's Estate, 333 Pa 278, 279, 5 A.2d 118 (1939); Robinson v. Metropolitan Life Insurance Company, 69 Pa.Super. 274 (1918); Burt v. Union Central Life Insurance Company, 187 U.S. 362, 23 S.Ct. 139, 47 L.Ed. 216 (1902). This principle is generally accepted by the courts, but there is disagreement among the jurisdictions concerning the evidence necessary in a civil action to establish the fact...