Hagarty v. Phoenix Insurance , 162 Minn. 359 ( 1925 )

¹ Reported in 203 N.W. 50. The two cases, tried together and argued here as one, were brought to recover a fire loss covered by policies issued by defendants. Plaintiff had verdicts totalling $1,687.30, and defendants appeal from the order denying a new trial.

The property insured, according to plaintiff's testimony, consisted of 11,000 cigars in boxes of 25 and 50 cigars each, packed in two wooden boxes, the largest being about 3 feet long by 2 feet wide and 18 inches deep. The claimed value was $887.50. He also testified that there were paper cartons, each containing 50 boxes of 10 packages, having 20 cigarettes to a package, a total of 65,000 cigarettes, worth $450. Then he claimed there was $350 worth of smoking tobacco in tin, paper, and cloth packages, packed in paper cartons similar to those containing the cigarettes. The boxes and cartons mentioned were stored in a newly-built garage in Hibbing, Minnesota, 14 feet wide by 16 feet long, frame construction, studding and rafters exposed, and stuccoed on the outside. The floor was concrete, there were double doors toward the front end and a single door on the side near the alley end. Each door had a window, covered on the inside with cardboard. The goods were piled on the floor near the southeast corner, six or eight inches from the wall.

Plaintiff left the place in the forenoon October 20, 1922, for Duluth. At 9:20 in the evening of the same day fire was discovered in the garage, and a fire alarm given. When the fire department arrived no fire was visible from the outside, but, upon the doors being forced open, the inside burst into flame. After about 15 minutes operation of the chemical engine, using some 35 gallons extinguishing fluid, the fire was put out. What remained was shoveled or carried out into the alley. On the side of the garage nearest to the goods, a hole about 3 feet long and 20 inches wide was burned through the boards and stucco. There was testimony that some of the rafters were somewhat charred, and the composition shingles so damaged that the roof had to be repaired, also the stucco loosened and cracked in places. The windows in the doors were not broken. The debris from the fire was variously estimated as ranging from a couple of barrels to a ton and a half. The fireman in charge testified that after the fire was extinguished there was not much left except "a bunch of ashes, that is all, and rubbish in there." That it was the firemen's duty to clean it out and they did so. No witness testified to seeing any unbroken packages or whole cigars, though remnants of tobacco and cigar stumps had been noticed in the rubbish afterwards carted away.

That there was fire which destroyed goods covered by the policies was conclusively established. There was some evidence of destroyed cigars and tobacco in the debris. Defendants offered no testimony. The sole effort of their counsel, at the trial, was to cross-examine plaintiff's witnesses for inferences and facts upon which to persuade the jury that there was not anywhere near the quantity of stock claimed in the garage when the fire occurred. And the argument here is that the amount and character of the debris and the condition the garage was left in demonstrate to a certainty the falsity of plaintiff's testimony that he had $1,687 worth of stock or any quantity approaching that amount in value, for, if so much had been consumed, the fire would have had more effect on the garage, and there would have been more remnants from cigars, cigarettes and tobacco in the debris and less of the cartons in which they were packed. Whether the results of the fire demonstrated plaintiff to have testified falsely to the stock on hand was peculiarly a jury question. If he falsified, it was done knowingly and deliberately. He was quite familiar with what goods he had in the garage. He fortified his recollection with invoices from the wholesale house where the goods were bought, and the credits given for those he had sold. It cannot be said that there is anything in the record which satisfactorily demonstrates that plaintiff committed perjury when testifying to the goods on hand before the fire. How long the fire had smoldered before noticed, to what extent, in a place where air was practically excluded, fire would consume goods of this nature, whether the tobacco as packed would disappear more rapidly than the paper cartons inclosing it, were all matters for a jury's consideration. The fireman in charge of the department gave his opinion that the fire had smoldered a long time before discovered. Add to that the effect of 35 gallons of chemicals forced against the burning mass, the shoveling out and carrying out of the debris in the night-time, with no one present interested enough in ascertaining whether or not anything could be salvaged. The jury were the ones to determine to what extent the witnesses who were present that night at the fire or who thereafter noticed the debris had occasion to make accurate observations. The firemen were intent upon getting the smoldering mass out of the garage, and whether there were boards, or boxes or remnants thereof, was of no particular interest to them. The ashes from a fire like this, and extinguished in the manner it was, could not have been of very noticeable amount. We think the quantity of goods lost by the fire was a pure question of fact and the jury's decision thereon should stand, approved as it has been by the trial court. It is not for an appellate court to set aside such a verdict upon mere suspicious inferences.

Misconduct of plaintiff's counsel is also assigned as ground for a new trial. Because defendants offered no testimony, counsel for plaintiff argued to the jury that the defense had been abandoned. He persisted in such argument against objection made by defendants, until the court ruled the argument improper. The argument of abandonment of a defense was hardly fair, considering the extreme diligence and resourcefulness of defendant's counsel in eliciting by cross-examination of plaintiff's witnesses so minutely every fact which directly or by inference might be urged as tending to disprove the existence of the stock of goods claimed to have been destroyed. But, when the trial court ruled it improper, counsel yielded, at least to such extent that the trial court found no fault in him. Whether misconduct of counsel is such as to warrant a new trial must be largely left to the discretion of the trial court. We see no abuse of judicial discretion in the instant case.

The other assignments of error here have been examined, but do not merit discussion and present no good reason for disturbing the verdict.

Order affirmed.