N. & M. Friedman Co. v. Atlas Assur. Co.

• Decision Date: 12 May 1903
• Parties: N. & M. FRIEDMAN CO. v. ATLAS ASSUR. CO.
• Court: Michigan Supreme Court

94 N.W. 757

133 Mich. 212

N. & M. FRIEDMAN CO. v. ATLAS ASSUR. CO.

Supreme Court of Michigan

May 12, 1903

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by the N. & M. Friedman Company against the Atlas Assurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Crane, Norris & Drew (Russel C. Ostrander, of counsel), for appellant.

Knappen Kleinhans & Knappen, G. A. Wolf, and J. H. Tatem, for appellee.

CARPENTER J.

In the court below, plaintiff recovered a verdict and judgment against the defendant for loss under an insurance policy. This policy was a Michigan standard policy. It bore date August 31, 1900, and, for the term of one year from September 10, 1900, insured plaintiff, to an amount not exceeding $2,000, on its stock of merchandise, situated at Nos. 70 and 72 Monroe street, Grand Rapids, Mich. The policy contained these clauses:

'Other concurrent insurance permitted.'

'This company shall not be liable, under this policy, for a greater proportion of any loss on the described property * * * than the amount hereby insured shall bear to the whole insurance.'

'This company shall not be liable for any loss caused directly or indirectly by invasion * * * or (unless fire ensues, and, in that event, for the 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.'

At 10 minutes to 2 on the morning of July 18, 1901, about half of the building which contained plaintiff's stock of goods fell to the ground. The larger portion of the stock was carried with it. At 3 o'clock it was discovered that the ruins were on fire, and the fire thus discovered consumed practically all the stock insured. Plaintiff had other insurance upon the property destroyed, which, together with that of the defendant, amounted to $100,000, so that defendant, under the terms of its policy, was liable for one-fiftieth of the loss covered by the policy.

Upon the trial in the court below, plaintiff insisted that the fall of the building was caused by fire. Defendant denied this. This issue was submitted to the jury. Plaintiff also insisted that the evidence warranted the jury in finding that the building fell in consequence of an explosion not directly caused by fire, and that, if they did so find, defendant would be responsible for its proportion of so much of the destruction of goods as was caused by the subsequent fire, which, according to plaintiff's testimony, would be about 95 per cent. of the total loss. Defendant denied that the evidence warranted any such finding. This issue was submitted to the jury. The court charged the jury that, it being conceded that the stock was destroyed by fire, the burden rested upon the defendant to prove that the building fell from some other cause than fire. The jury rendered a verdict for $1,982.55, which was one-fiftieth of the plaintiff's total loss.

Defendant asks a reversal of the judgment on these grounds: (1) That there was no evidence from which the jury could find that the fall of the building was caused by fire. (2) That their finding that it was so caused was so against the weight of the evidence that it should be set aside. (3) That the evidence did not warrant submitting to the jury the question of whether the fall of the building was caused by an explosion. (4) That the court erred in charging that the burden of proof rested upon the defendant to show that fire did not cause the building to fall. (5) That the court erred in admitting in evidence certain expert testimony.

We will proceed to discuss each of these questions:

1. Did the evidence warrant the jury in finding that the fall of the building was caused by fire?

2. Was their finding that it was so caused against the weight of the evidence?

These questions are so related that they will be considered together.

It may be taken as established by the testimony that immediately after the building fell, and for more than an hour thereafter, there was no appearance of fire in or about the ruins. There was no flame or smoke arising from the d�bris. No charred timbers or embers were visible. It appears, too, that plaintiff had been remodeling and improving the interior of its store, and had cut into and removed some of the partition walls in such a way as to afford evidence that it had thereby weakened the building. If we looked at these circumstances alone, the inference that fire did not cause the building to fall would be very strong. On the other hand, plaintiff produced before the jury no less than six witnesses who testified that before the building fell they saw a flame of fire--some of them spoke of it as a red sheet of flame--shoot up from the top of the building. Defendant insists that this testimony should be disregarded, for several reasons:

(a) That it is inconsistent with the testimony of other observers. It is true that this testimony is not in accord with that of several witnesses for the defendant. It may be said, however, that, of the witnesses who gave opposing testimony, only three were in a position to have observed this flame, had it been visible as plaintiff's witnesses testify.

(b) That this testimony is inconsistent with the fact that the ruins showed no appearance of fire for more than an hour. There is testimony tending to prove that the contents of the building were covered, after it fell, by mortar and brick. It is the theory of the plaintiff that the fire which occasioned the fall of the building was thus retarded and concealed for more than an hour after the building fell. This court cannot say that that theory was unsound, especially as there were placed before the jury instances where fire was concealed for some hours under conditions somewhat similar.

(c) That the fire which these witnesses described did not come from the top of the building before it fell, but was the flash occasioned by the building itself, during its fall, striking the electric light wires. We cannot accept this hypothesis without discrediting the testimony of the witnesses. They say it did come from the top of the building, and that it did precede the fall, and several of them testify that they saw these electric light flashes after they saw the blaze shoot from the top of the building.

(d) That the witnesses who gave this testimony should not be believed, for various reasons: That several of them could not have seen this blaze from their location. This does not so clearly appear that we are authorized to accept this argument. One of them, who was traveling on the street, attempts to locate his position, and says he was 'about' at a certain point. Granting it to be true that if he had been exactly at that point he could not have seen, we have no right, in examining his testimony, to believe, when he said 'about,' that he meant to be exact--particularly when, as a result, it leads to our discrediting his entire testimony.

(e) It is said that some of these witnesses should be discredited because some of their testimony is contradictory or inconsistent with former statements. If this were true of all of plaintiff's witnesses, it would present a strong argument in favor of setting aside the verdict because against the weight of the testimony. But it is not true of all of them. It is our judgment, therefore, that not only was there evidence upon this issue to submit to the jury, but that their verdict thereon should not be set aside because it was against the weight of the evidence.

3. Did the evidence warrant the court in submitting to the jury plaintiff's claim that the building fell in consequence of an explosion? In our judgment, we need not discuss this question. The verdict of the jury was for one-fiftieth of the entire amount, and not for one-fiftieth of a smaller amount, as it would have been, had they found that the building fell because of an explosion. In other words, the amount of the verdict proves that the jury found that the building fell in consequence of fire.

4. Did the court err in charging the jury that, plaintiff's stock having been destroyed by fire, the burden of proving that the fall of the building was not occasioned by fire was thereby transferred to defendant? This precise question was adjudicated in Western Assurance Co. v. Mohlman, 28 C. C. A. 157, 83 F. 811, 40 L. R. A. 561. The policy in that case was exactly like the policy before us, except in amount, name of insured, and description of property. It appears from the statement of facts that the insurance covered a stock of groceries and merchandise 'while contained in brick buildings Nos. 38-40 North Moore street and 156 Franklin street. On April 30, 1895, the property insured was destroyed by fire. At or about the time of the fire the building fell, and the issue of fact in the case was whether the fall preceded the fire, or was itself the result of fire. Upon this issue the testimony was conflicting, and the verdict of the jury was adverse to the insurance company.' The opinion in the case, written by Circuit Judge Lacombe, and concurred in by his associates, Circuit Judge Shipman and Mr. Justice Peckham, of the Supreme Court of the United States, is so applicable to this case, and so instructive in its reasoning and discussion of authorities, that we quote at length therefrom:

'The trial judge charged the jury that the burden of proof rested upon the defendant [the insurance company] to show by a preponderance of evidence that 'the fall preceded the fire'; that 'this building did not fall as the result of fire.' Exceptions to the charge, and to refusals to charge the converse of this proposition, sufficiently present the...