Renta-Car Co. v. Globe &-Rutgersfire Ins. Co.

• Decision Date: 30 October 1931
• Docket Number: No. 7.,7.
• Citation: 156 A. 847
• Parties: RENTA-CAR CO. v. GLOBE &-RUTGERSFIRE INS. CO.
• Court: Maryland Court of Appeals

156 A. 847

RENTA-CAR CO.

v. GLOBE &-RUTGERSFIRE INS. CO.

No. 7.

Court of Appeals of Maryland.

Oct. 30, 1931.

Appellate court was not at liberty to consider such conflict, that being solely question for jury.

It is sufficient if connection and inculpating significance of facts appear from whole evidence in whatever order it may be given.

Much latitude is allowed in admitting evidence offered to prove conspiracy because of clandestine nature of offense and secrecy which usually shrouds acts done to accomplish conspiracy.

Evidence offered, if true, indicated intention on part of mortgagee's agent to commit very fraud which was set up as defense to mortgagee's action for damages for loss occasioned by same kind of fire as that spoken of in conversation.

Evidence that president told discharged employee to stay away from neighborhood because he was hurting "my business" was admissible, not only to contradict president who had testified that he had transferred business to mortgagor, but as substantive evidence of president's connection with business at that time.

Such prayers were properly refused, since they were too indefinite and general to submit legal proposition.

Prayer, which required jury to find for defendant if mortgagee's president, who was sole stockholder and in control of corporation, instigated, originated, had knowledge of, consented to, acquiesced in, "or" participated "in any way" in any plan to burn property, should have been refused, since jury was thereby required to find for defendant if such president participated in any way in plan to burn property, even though such participation was wholly innocent and without any knowledge on president's part that conspiracy existed or that what he did would have effect of aiding it.

Statement that whenever fraudulent acts are done or attempted, parties guilty thereof usually conceal their acts, and that in nature of things, evidence in proof of such charges will, in general, be circumstantial, was mere general abstraction, more in nature of argument than legal proposition, and had no proper place in such prayer which referred to jury's duty in considering evidence.

Instruction that mortgagee could not recover if its president and owner "intended and expected" that property in question should be burned by mortgagor was erroneous, since its effect was to instruct jury that even though president did not communicate his intentions or expectations, and even though he took no part in fraudulent destruction of insured property, mortgagee could not recover.

Defendant's prayer by which jury were told that by phrase "preponderance of evidence," mentioned in plaintiff's prayer, law did not mean to indicate any particular degree of certainty to which proof must go, and that it simply meant that evidence in favor of defendant must, to minds of jury, be more weighty and more satisfactory than evidence of plaintiff upon same noint, was insufficient and misleading under circumstances, since evidence to sustain charge of fraud which involved commission of grave crime should at least have been sufficiently certain to overcome presumption of innocence which shielded plaintiff and its agents.

Appeal from Baltimore City Court; Eli Frank, Judge.

Action by the Renta-Car Company against the Globe & Rutgers Fire Insurance Company.

From a judgment in favor of defendant, plaintiff appeals.

Reversed and remanded for a new trial.

See also 158 Md. 169, 148 A. 252.

Argued before BOND, C. J., and PATTISON, URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

Richard E. Preece and Leon H. A. Pierson, both of Baltimore (Edward Pierson, of Baltimore, on the brief), for appellant.

Leonard Weinberg and Harry J. Green, both of Baltimore (Weinberg & Sweeten, of Baltimore, on the brief), for appellee.

OFFUTT, J.

The appellant in this case is a corporation, which, from April 3, 1926, until this suit, was engaged in the business of renting automobiles. Its principal office was at 701 East Baltimore street, but it maintained branches respectively at 1241 Light street and in the 3700 block Eastern avenue, all in the city of Baltimore. Charles W. Winters, during that period, was its president, owned all of its stock, and may for the purposes of this opinion be regarded as identical with it. George Winters, a brother of Charles, acted as secretary and treasurer of the corporation, although he had no financial interest in it and owned none of its stock. In connection with its business the corporation owned a number of automobiles which were kept at one or the other of its garages, and at some time in the month of November, 1927, Charles Winters is said to have suggested to one Myer M. Astrin, then managing the Light street branch of the business, that he take over that branch. As a result of further negotiations, documents evidencing a sale of the Light street branch and thirty-four automobiles to Astrin were executed. Those papers were: (1) A bill of sale dated December 14, 1927, from the Rent-a-Car Company to Myer M. Astrin, trading as Myers Drive-it-Tourself Company, for thirty-four automobiles for $16,000; (2) a chattel mortgage bearing the same date from Astrin to Rent-a-Car Company on the same property to secure the payment of $15,000, the unpaid balance of the purchase price thereof; (3) a sublease also dated December 14, 1927, from the Rent-a-Car Company to Astrin of the Light street property. On December 1, 1927, prior to the execution of the papers, Astrin is said to have taken possession of the automobiles, and on that date a policy was issued by the Globe & Rutgers Fire Insurance Company, the appellee, to the Rent-a-Car Company and the Myers Drive-it-Yourself Company, insuring them as their interest might appear against loss by fire of thirty-four automobiles to the extent of $13,500.

Between 12:30 and 2:25 o'clock on the morning of January 3, 1928, the Light street garage was found to be on fire and as a result of that fire automobiles covered by the policy were damaged. The routine steps to prove the loss and collect the insurance were taken by the assured, but the insurer failed to pay that loss, which was appraised at $5,275, and on May 3, 1928, the insured, Astrin, and the appellant, instituted a nonresident attachment proceeding against the appellee to collect it. The trial of the short note case in that proceeding resulted in a verdict and judgment for the defendant, and from that judgment the Rent-a-Car Company appealed to this court. Astrin failing to appeal, the judgment against him was affirmed. Rent-ACar Co. v. Globe & Rutgers Fire Ins. Co., 158 Md. 169, 148 A. 252. But the judgment against the appellant in this case was reversed and the case remanded for a new trial between it and the insurance company. Ibid. The effect of that decision was that Rent-a-Car Company and Astrin, trading as Drive-itYourself Company, were severally insured, and that Rent-a-Car Company was not barred from recovering on the policy by the fact that the loss for which it sought to recover was occasioned by the fraud of Astrin unless it was privy thereto. The fire, the damage, and the appellant's interest in the damaged property were not denied, so that the issue to be tried was whether the damage was caused by any fraudulent act to which the appellant was privy.

Upon the remand the case was retried upon that issue, and, the verdict and judgment being for the defendant, the plaintiff has taken this appeal.

In the course of the trial twelve exceptions were reserved, eleven to rulings of the trial court on questions of evidence and one, the twelfth, to its rulings on the prayers.

To the extent that they are involved in a consideration of those exceptions, the contentions of the parties as to the issues in the case may be thus stated: The appellant contends that, even if the fire which caused the loss which it seeks to recover in this case was of incendiary origin, there was no evidence in the case legally sufficient to convict it of fraudulent or guilty complicity therein, and that, in the absence of such evidence, the fire and the loss having been conceded, it is entitled to recover.

The defendant's theory was that there was in the case evidence legally sufficient to show that the fire was of incendiary origin, and was the result of a fraudulent conspiracy between Charles W. Winters, his brother George Winters, and Myer M. Astrin, the object and purpose of which was to destroy property covered by the policy issued by the appellee to the appellant in order that the appellant might be indemnified by the appellee in whole or in part for its loss.

As those contentions are reflected not only in the prayers but also in the evidence adduced by the respective parties, for clarity, it is necessary to state the nature and scope of the proof offered at the trial.

Charles W. Winters testified that he "owned" the Rent-a-Car Company, that he owned all of its stock, and that nobody but himself "had any money in it"; that negotiations for the sale of the Light street business and thirty-four automobiles by it to Astrin began the day after Armistice Day, 1926, and that on November 15, 1926, Astrin made the first payment, $500, in cash, on account of its purchase, and a second payment of $500 by check on December 14, 1926; that Astrin was a "kind of general collector and adjuster"; that one Judson R. Kezer had for four months prior to the sale been manager of appellant's Light street business, but left its employ on the night of Armistice Day, 1926, and that a few days later witness "got Astrin to go down and take charge" and then suggested the sale to him; that after December 1, 1926, he had absolutely no connection with the Light street business; that his brother George was never connected in any capacity with that branch of the Rent-a-Car Company; that he had seen Astrin at appellant's Baltimore street office at about 12 o'clock on the night of the fire, and had sent him home in witness'...