Weiner v. Aetna Insurance Company
| Decision Date | 13 July 1934 |
| Docket Number | 29195 |
| Citation | 256 N.W. 71,127 Neb. 572 |
| Parties | HARRY WEINER, APPELLEE, v. AETNA INSURANCE COMPANY, APPELLANT: ROME MILLER, CROSS-PETITIONER, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C THOMSEN, JUDGE. Reversed.
REVERSED, AND NEW TRIAL ORDERED.
Syllabus by the Court.
1. The question whether an insured burned the building, covered by fire insurance policies sued on, may be established by circumstantial evidence.
2. Each act and circumstance offered to prove fraudulent burning of insured building must contribute something to the proof of that fact.
3. A fraudulent fire can rarely be proved except by circumstantial evidence, and the question is for the jury if there is evidence of the fraudulent act.
4. Civil actions are determined by a preponderance of the evidence, even though the defense relied on imputes a crime. It is not necessary to establish in a civil action the defense of incendiarism beyond a reasonable doubt.
5. When the court sustains motion of plaintiff to discharge jury and render judgment at close of defendant's evidence, the appellate court will assume the existence of every material fact which the defendant's evidence tends to establish and give the defendant the benefit of logical deductions therefrom.
Appeal from District Court, Douglas County; Thomsen, Judge.
Two consolidated actions by Harry Weiner against the Æ tna Insurance Company, wherein Rome Miller filed cross-petition. Judgment for plaintiff, and defendant appeals.
Judgment reversed, and new trial ordered.
Crofoot, Frazer, Connolly & Stryker, for appellant.
Shotwell, Monsky, Grodinsky & Vance, Daniel J. Gross, Leon & White and Hotz & Hotz, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and LIVINGSTON, District Judge.
This is an appeal from an order discharging the jury at the close of the defendant's evidence, and entering a judgment for plaintiff for the full amount of two insurance policies issued upon the Millard Hotel, Omaha, which burned February 8, 1933. Attorney fees were also allowed Abel V. Shotwell, Daniel J. Gross, and Fred S. White in the sum of $ 229.28, and to William J. Hotz, attorney for Rome Miller, in the sum of $ 14.64.
The petition alleged that the Millard Hotel was located at the northeast corner of Thirteenth and Douglas streets, Omaha, and was a five-story brick building, and had a composition roof, and was protected from fire by a complete sprinkler system, and alleged the purchase of a $ 2,500 policy, attached to the petition as exhibit A, which would have expired May 21, 1933, being policy No. 17296.
The petition further alleged that about 10 o'clock p. m., February 8, 1933, a fire started in said building, which totally destroyed the building, without any act, design, procurement, or fault on the part of the plaintiff, and resulted in a total loss, and that the actual value of the building at the time of the fire was $ 170,000, and that plaintiff carried a total amount of fire insurance on said building at said time of $ 142,500.
Plaintiff further alleged that, at the time of the fire, the Central Life Assurance Society, an Iowa corporation, held a mortgage on the property, on which loan Rome Miller was an indorser on the notes secured by said mortgage, and had paid one of the notes in the sum of $ 5,000, and was subrogated to the rights of the mortgagee thereunder, and plaintiff prayed judgment for the face of the policy, with interest at 7 per cent. from May 1, 1933.
For answer to this petition the defendant, Aetna Insurance Company, admitted the issuance of the policy and the occurrence of the fire; denies that said fire was without fault, design, or procurement on the part of the plaintiff, and alleges the fact to be that said fire was brought about by the act, design, procurement, and fault of the plaintiff, for the purpose of attempting to collect on the large sums of insurance carried by the plaintiff upon said property. It is further denied in the answer that the value of the property was $ 170,000, and alleged that its fair and reasonable value at the time of the fire was not more than $ 50,000, although plaintiff was carrying a total amount of fire insurance upon it of $ 142,500.
A similar suit was brought by the same plaintiff against the same defendant in the district court for Douglas county, upon exactly the same kind of a policy, being policy No. 17344, for $ 2,500, for a like premium of $ 12.58, which second policy would have expired July 20, 1933, and similar pleadings were filed by each of the parties. On December 4, 1933, the trial court entered an order that the two cases be tried at the same time, said order being in effect an order for consolidation of the cases. On December 12, 1933, the trial having been in progress since December 4, and the defendant having rested, the plaintiff moved the court to discharge the jury and enter judgment in favor of the plaintiff, reserving the right to put in rebuttal testimony if the motion was overruled; but after argument the motion was sustained. On December 14, 1933, a motion for new trial was filed by the Aetna Insurance Company, hereinafter called the defendant, setting out eight grounds of error of the trial court, one of which was in not requiring plaintiff to rebut the evidence offered by the defendant for misconduct of the plaintiff, and because the decision of the court is not sustained by sufficient evidence, and is contrary to the weight of the evidence and contrary to the law.
The evidence discloses that Harry Weiner bought the Millard Hotel in 1918, and had conducted it since that time, and had been its sole owner since 1921. He bought the property for $ 120,000, paying $ 20,000 in cash, and giving back a mortgage for $ 100,000, which had been reduced about a half. The gross income from the hotel for the fifteen years had averaged over $ 50,000 a year, but during the recent depression years had declined until the gross income for 1932 was only $ 26,317.97, and it was indicated that the hotel could not be operated profitably on that income.
At the time of the fire delinquent taxes upon the hotel property had been paid by the Central Life Assurance Society, assignees of the first mortgage, in the sum of $ 6,500.12, and the decree of foreclosure was entered 23 days before the fire, showing the total amount due of $ 51,918.98, and a second lien for Rome Miller for $ 5,149.98, and a nine months' stay had been taken by Harry Weiner.
Exhibit No. 49, giving a record of all policies of insurance upon the Millard Hotel, was received in evidence without objection, and discloses that on the date of the fire there was a total of 43 policies of insurance in force, as follows: Two policies for a total of $ 40,000 against windstorm; five policies on the furniture, fixtures, and equipment, of a total amount of $ 36,500; one policy on use and occupancy of $ 27,500; four policies of rent insurance, amounting to $ 20,000; and 31 policies of fire insurance, amounting to a total of $ 142,500. A careful examination of the exhibit No. 49 discloses that $ 15,000 of fire insurance would expire in 34 days after the fire; $ 10,000 would expire 16 days later; $ 17,000 would expire 30 days later; and $ 14,000, 21 days later; or that, by May 21 following the fire, some $ 56,000 of the fire insurance on this building would have expired, involving an expense of between $ 2,000 and $ 3,000 to secure the usual annual renewals at the rate paid on the policies in suit.
On October 19, 1931, Mr. Weiner had given a chattel mortgage on all of his hotel fixtures and household goods as additional security to the holder of the first mortgage upon the hotel property. He also owed a bill for a carload of coal, of $ 638, and on October 21, 1932, Armour & Company transcripted a judgment for a small bill of $ 46, and the judgment was still unpaid. Will H. Thompson & Sons were suing him for $ 50 and attorney fees. E. H. Luikart, as receiver of the State Bank of Omaha, had brought suit against the plaintiff on October 16, 1931, upon promissory notes for $ 26,000, and recovered a judgment for $ 28,836.58 and interest on May 15, 1933.
The plaintiff owned a residence property at 2109 Webster street, Omaha, which had been mortgaged to the Omaha Loan & Building Association, and the balance due was $ 3,400.67, and payments on the loan were in arrears in the sum of $ 705, and as of July 24, 1933, the taxes were delinquent in the sum of $ 307.95, and the association had threatened foreclosure prior to the time of the fire.
On March 14, 1930, the plaintiff had leased the Fifth Avenue Hotel in Omaha for 20 years, at a rental of $ 500 a month for the first two years, and higher thereafter, and had turned said hotel over to his son to manage. Alfred C. Kennedy, receiver, testified that on March 1, 1933, there was $ 6,300 rent delinquent on said Fifth Avenue Hotel, and that the taxes that plaintiff agreed to pay by the terms of the lease were delinquent in an amount of approximately $ 6,000.
Entry No. 8 of the abstract sets out that a suit for personal injuries was filed against the plaintiff and two others on December 24, 1932, and that the same was still pending.
In regard to the value of the Millard Hotel property at the time of the trial, several well-known realtors of Omaha testified that the value of property in that neighborhood was declining.
Edward M. Slater, a realtor, who had served on appraisal committees of the real estate board, made an appraisal of the Millard Hotel building in June, 1932, by actual inspection and observation. He testified that the hotel was 50 years old, of an old type of frame and brick construction, and was worth between $...
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Weiner v. Ætna Ins. Co.
... ... 1. The question whether an insured burned the building, covered by fire insurance policies sued on, may be established by circumstantial evidence. 2. Each act and circumstance ... Two consolidated actions by Harry Weiner against the tna Insurance Company, wherein Rome Miller filed cross-petition. Judgment for plaintiff, and defendant appeals. Judgment ... ...