Sumrall v. Providence Washington Ins. Co.

• Decision Date: 02 June 1952
• Docket Number: No. 40516,40516
• Citation: 221 La. 633,60 So.2d 68
• Parties: SUMRALL v. PROVIDENCE WASHINGTON INS. CO.
• Court: Louisiana Supreme Court

Page 68

60 So.2d 68

221 La. 633

SUMRALL v. PROVIDENCE WASHINGTON INS. CO.

No. 40516.

Supreme Court of Louisiana.

June 2, 1952.

Rehearing Denied July 3, 1952.

R. W. Williams, Jr., J. C. Dabadie, Jr., Baton Rouge, for defendant and appellant.

Fred G. Benton, George Mathews, Edward Donald Moseley, Baton Rouge, for appellee.

McCALEB, Justice.

This is an action to recover the face value ($7500) of a fire insurance policy, together with penalties and attorneys' fees. The policy was issued by Providence-Washington Insurance Company, on April 16th 1949, covering the one story frame residence of plaintiff (which was then under construction) located in Glenn Oaks Drive Subdivision in the City of Baton Rouge. The house was totally destroyed by fire during the early morning hours of August 16th 1949.

The insurer resists the demand, affirmatively charging that plaintiff, either by himself or in conspiracy with his father or third persons, burned or was instrumental in setting the property afire for the purpose of collecting the insurance.

Following a trial on this issue, the judge ruled for plaintiff, fixing the actual loss at $6798.58.¹ And, after deducting therefrom the sum of $2485.06, being the amount due the mortgagee, Capital Bldg. and Loan Assn., judgment was entered for $4313.52, plus statutory penalties of 12% and attorneys' fees of 20% of the principal award. Defendant has appealed.

Inasmuch as the defense is arson, the burden rested upon the insurer to establish, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. It is well settled that the insurer need not prove its case against a plaintiff beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire. Adams v. Liverpool & London & Globe Insurance Co., 5 Orleans App. 301; St. Philip v. Lumbermen's Ins. Co. of Philadelphia, 18 La.App. 331, 137 So. 359; Wilson v. Aetna Ins. Co., La.App., 161 So. 650; Parker v. Hartford Fire Ins. Co. of Hartford, Conn., La.App., 163 So. 435; Picoraro v. Insurance Co., 175 La. 416, 143 So. 360; Di Martino v. Continental Ins. Co. of New York, 187 La. 855, 175 So. 598 and Pizzolato v. Liverpool & London & Globe Ins. Co., 207 La. 101, 20 So.2d 551. Accordingly, the questions presented in matters of this sort are answered by the particular facts of the controversy. Those of the case at bar are as follows:

Plaintiff's father, J. E. Sumrall, is a contractor doing business in Baton Rouge, Louisiana. During the Summer of 1949, he became engaged in subdividing, for residential purposes, a tract of land known as 'Glenn Oaks Drive', situated north of the city of Baton Rouge. In July 1949, there were five dwellings located on Glenn Oaks Drive, one owned by a Mr. Couch, another by a Mr. Choates, two by J. E. Sumrall and the other, the property in question, owned by plaintiff. All of these houses were single, one story, two or three bedroom structures of modern style and were constructed by J. E. Sumrall, either as contractor or as owner. Plaintiff's house was being built for his own use and he performed and superintended, in conjunction with his father, all of the construction work.

At about 10:00 p. m. on Friday, August 12th 1949, plaintiff's truck, loaded with refuse lumber and shavings allegedly taken from his house, caught afire while it was parked in the rear of the dwelling. The fire was discovered by Mr. Choates and Mr. Couch, who lived within the immediate vicinity, they arriving at the scene in time to extinguish it before it spread to or burned any portion of the house. In arresting the fire, these neighbors discovered a five gallon can on the floor of the truck which contained turpentine.

On the following Sunday morning at about 3:00 o'clock, J. E. Sumrall's house, located on the other side of the street from plaintiff's property, burned to the ground. This fire was investigated by an employee of the State Fire Marshal's office, a Mr. Harrelson. In the course of his inquiry, Mr. Harrelson was told by the neighbors of the fire on the truck and he thereupon made an examination of plaintiff's property,² which disclosed that there was a considerable amount of shavings and other debris spread over the kitchen and combination dining room-living room, together with stains of varnish or other liquid and buckets or cans containing turpentine, paint or other inflammable substances. Mr. Harrelson testified that, in his opinion, the house was 'set up' for a fire and that it was 'loaded to go'. Upon his discovery, he immediately contacted the Sheriff's office and a deputy sheriff repaired to the scene where photographs were taken of the interior of plaintiff's house and also of the truck which had previously caught fire. The photographs, which were offered in evidence, were identified by Harrelson and other witnesses testifying for defendant. They portray a scene of accumulated lumber shavings and refuse piled over the floors, nearby cans or buckets containing according to the testimony, turpentine, varnish or other liquids which also appear to have been spilled on the floors. On the following Tuesday morning, August 16th 1949, at about 1:45 a. m., the house burned to the ground.

The trial judge concluded that the fire was of incendiary origin. However, counsel for plaintiff argue in this court that the proof does not justify the holding.

For our part, we think that the facts speak for themselves. Three fires within five days burning to the ground the houses of father and son and damaging the truck of the son, can hardly be regarded as mere coincidences, especially in view of the direct evidence of disinterested witnesses that two rooms in the interior of plaintiff's house were littered with shavings and debris, saturated with turpentine or other inflammable substances. Indeed, the testimony of plaintiff himself and that of his father discloses that they did not contend that the fires were accidental--for they stated that they had enemies opposed to the development of Glenn Oaks Drive and indicated that these parties were responsible for the conflagrations.

Since we are in agreement with the judges that the setting of the fire was deliberate, the question next arises as to whether the insurance company has established that plaintiff, either...