Rovinsky v. N. Assur. Co.

• Decision Date: 29 March 1905
• Citation: 100 Me. 112,60 A. 1025
• Parties: ROVINSKY v. NORTHERN ASSUR. CO. SAME v. FIRE INS. CO. OF COUNTY OF PHILADELPHIA.
• Court: Maine Supreme Court

60 A. 1025

100 Me. 112

ROVINSKY

v. NORTHERN ASSUR. CO.

SAME

v. FIRE INS. CO. OF COUNTY OF PHILADELPHIA.

Supreme Judicial Court of Maine.

March 29, 1905.

Exceptions from Supreme Judicial Court, Oxford County.

Action by Joseph Rovinsky against the Northern Assurance Company, and by the same against the Fire Insurance Company of the County of Philadelphia. Verdicts for plaintiff in both actions, and defendants move for a new trial and file exceptions. Motion sustained. Exceptions not considered.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

John P. Swasey, for plaintiff. Leslie C. Cornish and Norman L. Bassett, for defendants.

WHITEHOUSE, J. The plaintiff had $1,500 insurance on his household goods, furniture, and wearing apparel, in a small house at Rumford Falls, owned by J. W. Withee. The house was not greatly damaged by the fire, but the plaintiff's schedule of loss on his personal property amounted in the aggregate to $2,076.

The defendants contended in the first place that the fire was set either by the direct act of the plaintiff or by his procurement. Secondly, it was contended that the plaintiff attempted a fraud upon the companies in his proof of loss, first, by knowingly including in his schedule numerous valuable articles not in the house at the time of the fire, and not destroyed; and, secondly, by knowingly placing an excessive and fraudulent valuation on numerous other articles in his schedule.

It may be conceded that the suspicious facts and circumstances tending to show an apparent preparation for a fire, and to establish the fact of its incendiary origin, are not sufficiently conclusive to warrant a judicial finding that the fire was intentionally set for the purpose of defrauding the companies; but, in the light of these facts and circumstances, the true color of much of the evidence relating to the proof of loss may be more clearly seen.

The fire occurred October 10, 1902, at 4 o'clock in the morning. There was no person in the house at the time. The plaintiff's wife, to whom he had been married about a year, left two weeks before, for a visit to her parents, in Montreal. The two roomers who occupied a chamber in the house some part of the time had left—one before the departure of the wife, and one a few days after. The plaintiff was stopping that night at his father's house, on another street.

The plaintiff's house consisted of three small rooms below—parlor, dining room, and kitchen—and three chambers above. The single chimney in the house was so located as to receive funnels from each of the lower rooms, and also from the hallway above; but for several months before the fire only the kitchen stove had been set up for use. Next to the chimney there was a dining-room closet, 36 inches wide and 17 inches deep. The plaintiff says he built or attempted to build a coal fire in the kitchen stove about 8 o'clock in the evening before the fire broke out at 4 o'clock in the morning, although he did not intend to sleep there that night. He says he built it in the ordinary way, closed the drafts, and left everything all right when he went home, between 9 and 10 o'clock. But this attempt to build a coal fire was manifestly unsuccessful, and the unburned coal found the next day in the kitchen stove, and the absence of any defect in the chimney before the fire, afforded an apparent refutation of the theory that the fire was caused by an overheated stove.

The fire was promptly extinguished, and it appears to have been confined to the central part of the house, near the chimney, and to this dining-room closet. The paper and excelsior raked out of the debris at the bottom of this closet, with the odor of kerosene upon them, had great significance respecting the probable origin of the fire. The plaintiff's evidence relating to the contents of a small sheet-iron stove which fell from a closet above, and a can of kerosene carried upstairs to fill lamps in a house lighted by electricity, does not satisfactorily explain the condition existing at the bottom of this closet. The extent and character of the house furnishings existing outside of this small closet could be, for the most part, readily discovered after the fire; and the evidence shows that the house, alleged to have contained more than $2,000 worth of goods and apparel, had been stripped of all its most valuable furnishings and ornaments, and was in no condition for Mrs. Rovinsky to resume housekeeping after her two weeks' visit with her parents in Montreal.

1. All the evidence tending more directly to show fraud in the plaintiff's proof of loss, considered in connection with these facts and circumstances, and with the plaintiff's improbable explanation, is utterly irreconcilable with the plaintiff's theory.

In the first...