Commonwealth v. Cali , 247 Mass. 20 ( 1923 )

Braley, J.

The defendant having been indicted, tried and convicted under G. L. c. 266, § 10, of burning a building in Leominster belonging to Maria Cali, which at the time was insured against loss or damage by fire, with intent to injure the insurer, the case is here on his exceptions to the denial of his motion for a directed verdict, and to rulings at the trial.

It is contended, that there was no evidence that the building was insured by a valid policy at the time it was burned. But it was uncontroverted that when the defendant was the owner he mortgaged the property to the Fitchburg Cooperative Bank and procured and delivered a policy of insurance thereon payable to the mortgagee, which contained this clause, “ If this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee or his agents, or those claiming under him, shall affect the mortgagee’s right to recover in case of loss on such real estate: provided, that the mortgagee shall, on demand, pay according to the established scale of rates for any increase of risks not paid for by the insured; and whenever this company shall be liable to a mortgagee for any sum for loss under this policy, for which no liability exists as to the mortgagor, or owner, and this company shall elect by itself, or with others, to pay the mortgagee the full amount secured by such mortgage, then the mortgagee shall assign and transfer to the companies interested, upon such payment the said mortgage, together with the note and debt thereby secured.” The mortgage has never been discharged, nor the policy cancelled, and his subsequent conveyance of the property to Maria Cali without the consent of the company, or any other acts or defaults on the defendant’s part which would avoid the policy as to him, did not affect the rights of the bank in so far as its interests were protected. It could enforce the policy in its own name. Palmer Savings Bank v. Ins. Co. of North America, 166 Mass. 189, 191. Commonwealth v. Kaplan, 238 Mass. 250.

The only evidence as to the origin, extent and progress of the fire were the statements of the defendant to the police inspector, and as a witness. The jury who were to determine his credibility and the weight to be given his testimony could find notwithstanding his explanations of its origin as being purely accidental, that when all the circumstances were reviewed he either set it, or after the fire was under way purposely refrained from any attempt to extinguish it in order to obtain the benefit of the proceeds of the policy, which when recovered, would be applied by the mortgagee on his indebtedness. If they so found, a specific intent to injure the insurer had been proved. The motion, and the defendant’s requests in so far as not given were denied rightly. Commonwealth v. Asherowski, 196 Mass. 342, 348, 349.

The instructions to the jury that, “ If a man does start an accidental fire what is his conduct in respect to it? A question might arise — as if after the fire has started accidentally, and he then has it within his power and ability to extinguish the fire and he realizes and knows that he can, and then he forms and entertains an intent to injure an insurance company he can be guilty of this offence. It is not necessary that the intent be formed before the fire is started,” also show no error of law. It is true as the defendant contends, that, if he merely neglected in the emergency of the moment to act, his negligence was not proof of a purpose to commit the crime charged. The intention, however, to injure could be formed after as well as before the fire started. On his own admissions the jury were to say whether, when considered in connection with all the circumstances, his immediate departure from the premises for his home in Fitchburg, without giving any alarm, warranted the inference of a criminal intent or state of mind, that the building should be consumed. Commonwealth v. Kendall, 162 Mass. 221, 224. People v. Johnson, 131 Cal. 511. People v. Haxer, 144 Mich. 575.

Exceptions overruled.