Spach v. Monarch Insurance Company of Ohio
| Decision Date | 14 November 1962 |
| Docket Number | No. 19111.,19111. |
| Citation | 309 F.2d 949 |
| Parties | May SPACH, as Receiver for Ro-Ben, Inc., a Florida bankrupt corporation, Appellant, v. MONARCH INSURANCE COMPANY OF OHIO, Appellee. MONARCH INSURANCE COMPANY OF OHIO, Appellant, v. May SPACH, as Receiver for Ro-Ben, Inc., a Florida bankrupt corporation, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Anthony Reinert, Wicker, Smith, Blomqvist, Hinckley & Davant, Anthony Reinert, Miami, Fla., for appellant.
George J. Baya, Miami, Fla., for appellee.
Before JONES, WISDOM and GEWIN, Circuit Judges.
Ro-Ben, Inc. brought an action in the Circuit Court of Dade County, Florida, against Monarch Insurance Company of Ohio to recover for loss and damage by fire to a stock of merchandise in a lingerie and trousseau shop in the Eden Roc Hotel in Miami Beach, Florida, which Monarch had insured. The cause was removed to the United States District Court for the Southern District of Florida. Ro-Ben was adjudicated a bankrupt and May Spach, as its Receiver, became a substituted plaintiff. A judgment for the plaintiff was entered which, on appeal, was reversed and remanded. Monarch Insurance Company v. Spach, Receiver, 5 Cir., 1960, 281 F.2d 401. A new trial was had at Miami, Florida. A verdict was returned for Spach in the amount of $15,000. A judgment was entered on the verdict. Thereafter the court entered a judgment against Monarch for attorneys' fees in the amount of $5,000. Spach has appealed on the ground that the verdict is against the undisputed evidence and that it was the result of passion, prejudice and bias caused by the court's refusal to strike certain of Monarch's defenses and by remarks made by Monarch's counsel and witnesses. Monarch has appealed from the judgment for attorneys' fees.
We do not think the cause of jurisprudence would, in any measure, be advanced by a recital of the evidence by which the parties attempted to show the value of the stock of merchandise destroyed or damaged by the fire. Efforts were made to reconstruct an inventory to determine prices and values. The appellant Spach insists that there is undisputed proof that the loss was more than double the amount of the jury award. Although it does not take a cross-appeal challenging the amount of the jury verdict and the judgment thereon, Monarch counters with the contention that Spach as plaintiff failed to establish the value of the goods damaged or destroyed and should be entitled to nominal damages only. In the review of a jury verdict the inquiry of a reviewing court is whether the jury finding could, with reason, be made upon the evidence before it. American Casualty Co. v. Myrick, 5th Cir. 1962, 304 F.2d 179, Patterson v. Belcher, 5th Cir. 1962, 302 F.2d 289. The evidence in the record before us justifies the inferences of the amount of the fire loss sustained and the district court did not err in refusing to set the verdict aside and grant a new trial.
In the cross-examination of Roger N. Saleeby, the President of the bankrupt corporation, counsel for Monarch was making inquiry regarding a business trip. The witness had stated that "We went to Long Island and to Boston," and to other places. Then the following transpired:
It seems that a person by the name of Adjmi had received considerable publicity in the Miami area in connection with a criminal charge against him.
At a pre-trial conference the court had ruled that no evidence would be received that Roger N. Saleeby had refused, at the request of investigators of the cause of the fire, to take a lie detector test. During the trial Monarch called these investigators as witnesses. One of these was George Zoller, a detective in the Miami Beach Police Department. After he had identified himself, the examination proceeded:
Monarch called to the witness stand Frank Fitzpatrick, a Captain on the Miami Beach Fire Department. As to his testimony the record shows:
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