Sternberg v. MERCHANTS'FIRE ASSUR. CORPORATION

• Decision Date: 13 March 1934
• Citation: 6 F. Supp. 541
• Parties: STERNBERG v. MERCHANTS' FIRE ASSUR. CORPORATION et al.
• Court: U.S. District Court — Eastern District of Wisconsin

6 F. Supp. 541

STERNBERG v. MERCHANTS' FIRE ASSUR. CORPORATION et al.

District Court, E. D. Wisconsin.

March 13, 1934.

Fischer & Brunner, of Shawano, Wis., for plaintiff.

Wolfe & Hart, of Milwaukee, Wis., for defendants.

GEIGER, District Judge.

At the conclusion of the testimony, each party unqualifiedly moved for a directed verdict. It is undisputed that the record title of the insured premises was in the plaintiff; that several policies were issued and were in force at the time of the fire; that the policies were written on the standard form prescribed by Wisconsin statutes; and that the premises were insured as a hotel and, at the time of the issuance of the policies, a hotel was being operated or conducted therein; that the amount of loss, if any, is not open to question on the testimony.

With the exception of a reference to be hereafter made respecting the perpetrator of an admitted incendiarism, I accept as the facts to be found the following as submitted on behalf of the defendants:

"That Julius Sternberg, the 47-year old son of the plaintiff owned the premises in question for a period of seven or eight years prior to the Spring of 1931, and that during such period of time, he and his wife, Norma, had operated a hotel in the premises which were constructed and adapted for that purpose; that during this period, the plaintiff, Theodore Sternberg, had furnished considerable sums of money to the son, Julius, as security for which he held a mortgage on the hotel property; that in the Spring of 1931, the wife of the son, Julius, secured a divorce from him and an alimony allowance of Thirty Dollars ($30.00) per month. Coincident with the commencement of the divorce proceedings, the plaintiff at the request of the son, Julius, instituted foreclosure proceedings, and upon the granting of the divorce, Julius quit claimed his interest in the property to the plaintiff who at the same time paid to the divorced wife, Norma, the sum of Five Hundred Dollars ($500.00).

"At the time of the divorce, the son, Julius, was removed from the premises and thereafter for a period of approximately a year up until the 15th of May, 1932, the divorced wife remained in the hotel property and continued to conduct and operate the same as a hotel. Her tenancy in the hotel was based upon a monthly rental of Fifty Dollars ($50.00) of which sum she was to pay Twenty Dollars ($20.00) in cash and the balance, amounting to Thirty Dollars ($30.00), was offset by the monthly alimony payment due her from Julius. The monthly rental was reduced after two or three months, so that during the last eight or nine months of her tenancy the rent was completely offset by the alimony, and during this period of her tenancy she paid nothing to the plaintiff.

"The plaintiff testified that Norma removed from the premises not less than a month before the fire. The defendants' witnesses, Fox and Wolfinger, placed the time of her removal at not later than May 15, 1932. After the removal of Norma Sternberg, no business of any kind was carried on in the hotel property.

"Upon the removal of Norma Sternberg from the premises, the plaintiff, Theodore Sternberg, sent the son, Julius, to the place for the purpose of taking care of the property, and, if possible, to secure another tenant or a purchaser for the place. It was not contemplated that Julius was to operate the hotel, although there was testimony that he wanted to but the plaintiff refused to permit it for the reason that he (Julius) could do nothing there without a `woman.' Julius stayed in the place night times, occupying one of the rooms, and when he was not there, the doors were closed and locked. There is no proof that he prepared any of his meals there, or that he did anything in the way of using the premises except to sleep there. The testimony of the defendants' witnesses, Fox and Wolfinger, as well as of the plaintiff himself, is uncontradicted and conclusive that from the time of the removal of Norma Sternberg the hotel was not operated, and that no business of any kind was conducted in the premises.

"On the night of June 7th, Julius was not in the premises, and on the morning of June 8th at about two o'clock, the place was discovered to be on fire. When the fire was brought under control, it was found that the fire had...