Williams v. Fire Ass'n of Philadelphia
| Decision Date | 03 November 1939 |
| Docket Number | 6020. |
| Citation | 193 So. 202 |
| Parties | WILLIAMS v. FIRE ASS'N OF PHILADELPHIA. |
| Court | Court of Appeal of Louisiana — District of US |
Appeal from First Judicial District Court, Parish of Caddo; Robt. J O'Neal, Judge.
Action by Harry D. Williams against the Fire Association of Philadelphia to recover on a fire policy plus the statutory penalty and counsel fees. From a judgment for plaintiff plaintiff and defendant appeal.
Affirmed.
Irion & Switzer, of Shreveport, for plaintiff-appellant-appellee.
Coleman & Morgan, of Shreveport, for defendant-appellant-appellee.
Defendant insured the household goods and personal effects of plaintiff against loss and/or damage from fire, to the amount of $750. On October 29, 1938, while the policy contract was in force, plaintiff's residence, wherein the insured property was located, was discovered on fire from within. Prompt action of firemen extinguished the flames before much of the building had been consumed. Some of the household effects were totally destroyed; some were only slightly damaged, while others escaped any injury whatever. Being of the belief that the fire was incendiary and that plaintiff was responsible for or authorized it, defendant refused to settle for the loss.
This suit was instituted to recover the face amount of the policy, plus the statutory penalty of 12% and counsel fees as is provided by Act No. 168 of 1908.
Plaintiff's demand is primarily resisted on the ground that he, through his wife, acting as his agent, set fire to or caused to be set on fire, the residence and the personal property covered by the policy for the purpose of collecting the insurance thereon. This is a special defense, proof of which rests upon defendant.
It is further pleaded that the actual loss and damage resulting from the fire was much less than the amount sued for. Proof of extent of loss was the burden of plaintiff.
There was judgment for plaintiff for $157.50, plus 12% thereof as penalty, and for $50 additional as attorney's fee. Both plaintiff and defendant prosecute appeal therefrom.
The insurance in question was effected in July, 1937.
Plaintiff was sentenced on February 26, 1938, to serve 18 months in the United States Southwestern Reformatory at El Reno, Oklahoma, for violating the Federal Postal laws. His wife was left in charge of their home and the effects therein, and continuously lived there until the time of the fire. He was released on parole on November 23, 1938. He was not allowed to leave prison during the term of his service, nor did his wife visit him there. Mail sent out and that received by him was strictly censored by prison authorities. No conversation with others was allowed, save in the presence and hearing of some person connected with the reformatory, therefore, it was humanly impossible for plaintiff to have personally set fire to his residence and its contents. It is almost as equally conclusive that he had no opportunity to secretly authorize or suggest to his wife or any other person that she or they do so.
There is no doubt that the fire was of incendiary origin. The contents of a rear room were entirely destroyed and therein the fire had made its greatest progress. Several pieces of loose paper had been placed on as many articles of furniture and set on fire. These had been totally consumed with little damage to the furniture on which they were placed. Firemen found all doors of the building locked and the windows latched or bolted. Whoever actually started the fire took care to leave the building closed to anyone except by the use of keys or force.
Plaintiff's wife slept in the building the night preceding the fire. A negro boy, a lodger, also slept therein that same night. Each was employed in the business section of the City of Shreveport, several minutes' distance from plaintiff's residence, and each, the testimony satisfies us, was engaged in the performance of his or her respective duties when the fire was discovered, and had been so engaged for several hours prior thereto. It is reasonably certain that neither of these persons actually set on fire the insured effects. Even though we should find and hold that either did start the fire or cause it to be done, defendant thereby would not be absolved from responsibility for the ensuing loss, unless it should also appear that plaintiff counseled, suggested or authorized their illegal action. And, as heretofore said, it is made quite certain he did not do so.
A strong suspicion arises from the facts and circumstances of the case, that plaintiff's wife knew more about the origin of the fire than she was willing to admit, and if she possessed such knowledge, of course, the conclusion would be irresistible that she had it done for the purpose of gain.
It is proven that plaintiff's wife, from funds sent to her by him after he began his prison term, paid monthly installments due the carrier of a large mortgage on the family home, which was also heavily insured; paid balances due on furniture and on an automobile, and in all needed ways acted as his agent with regard to the preservation of their property. From these established acts of agency, it is argued that the wife, in furtherance of such agency, committed or caused to be committed, the arson under discussion.
No inference arises from a lawful relation of principal and agent that the latter is authorized to perform unlawful acts from which the former may directly or indirectly benefit. Such relation is one of trust and fidelity and will not be extended to embrace, in the absence of very strict proof, deeds unlawful and/or criminal from their very nature. And because the agent happens to be the insured's wife does not affect the rule in such cases. Anent this issue 14th R.C.L., page 1223, verbo Insurance, says:
" If, however, the insured was insane when he destroyed the property a recovery may be had, and the fact that the property was intentionally burned by the insured's husband, wife or agent does not defeat a recovery, where the insured was not a party thereto." James F. Henderson et al. v. Western Marine & Fire Insurance Company, 10 Rob. 164,43 Am.Dec. 176; Walker v. Phoenix Insurance Company, 62 Mo.App. 209; Perry et al. v. Mechanics' Mutual Insurance Company, C.C., 11 F. 485.
Defendant failed to establish its special defense.
As to the value of the insured effects destroyed, and extent of damage to others, much difficulty arises. Plaintiff fairly well proved the cost...
To continue reading
Request your trial
-
Nuffer v. Insurance Co. of North America
...Clark, 258 Ala. 141, 61 So.2d 19, 28; Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540, 548; Williams v. Fire Ass'n. of Philadelphia, La.App., 193 So. 202, 204; Austin v. Maine Farmers' Mutual Fire Ins. Co., 126 Me. 478, 139 A. 681; Rent-A-Car Co. v. Globe & Rutgers Fire In......
-
Hartford Fire Ins. Co. v. Clark
...see Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308(9), 23 So. 759; Orient Ins. Co. v. Parkhill, supra; Williams v. Fire Ass'n of Philadelphia, La.App., 193 So. 202; Hawkins v. Glen Falls Ins. Co., 115 W.Va. 618, 177 S.E. 442; Aetna Ins. Co. v. Carpenter, 170 Va. 312, 196 S.E. The all......
-
Bohn v. Louisiana Farm Bureau Mut. Ins. Co.
...and the cases cited therein. Plaintiffs had the burden of proving the extent of their loss at trial. See Williams v. Fire Ass'n of Philadelphia, 193 So. 202, (La.App. 2d Cir.1939). In Young, supra, it was held that where the best available evidence of the loss of contents is plaintiff's tes......
-
Pleasant v. Motors Ins. Co.
...L. Ins. Co., 184 Ark. 625, 43 S.W.2d 81; Henderson v. Western M. & F. Ins. Co. (La.), 10 Rob 164 (agent); Williams v. Fire Asso. of Philadelphia (La.App.), 193 So. 202; Aetna Ins. Co. v. Carpenter, 170 Va. 312, 196 S.E. 641; Hawkins v. Glens Falls Ins. Co., 115 W.Va. 618, 177 S.E. The insur......