175 A. 19 | Vt. | 1934
This is an action of contract upon a policy of fire insurance covering certain property owned by the plaintiff Belock and mortgaged to the plaintiff Crampton, the loss being payable to the latter as his interest might appear. The plea is that the fire was caused by the fraudulent act of Belock, in that he wilfully burned or caused to be burned the insured building. This defense was available as against both Belock, the mortgagor, and Crampton, the mortgagee (Girard v. Vermont Mutual Fire InsuranceCo.,
The motion to set aside was based upon five grounds, but the trial court granted it upon the first, second and fifth grounds, which were as follows: (1) For that the said verdict was contrary to any reasonable inference from all the evidence that the plaintiff Belock did not burn or cause to be burned the property for the insurance on which the plaintiffs seek to recover; (2) for that the verdict is contrary to the evidence, and not warranted thereby or by any reasonable inference to be drawn therefrom; (5) for that from the evidence and all reasonable inferences to be drawn therefrom there was nothing upon which reasonable men could differ and that the defendant was entitled to a verdict.
The distinction between a motion to set a verdict aside as against the evidence, and one based upon the ground that there is no supporting evidence is stated in French v. Wheldon,
Of the three grounds for the motion in the instant case, the second called for the exercise of the court's discretion. The fifth is in substance that there was no supporting evidence. And so, as we construe it, is the first also, because the expression "that the said verdict was contrary to any reasonable inference from all the evidence," is equivalent to a claim that there was nothing in the evidence which justified the verdict. Of course, if the ruling can be sustained upon any one of the grounds, the judgment must be affirmed. If nothing appeared to the contrary, we would assume that the court acted solely as a matter of discretion (Parkhurst v. Healy's Estate,
The burned building was the horse barn on the Belock farm, situated about a mile southerly of the city of Rutland. It was about 50 feet distant from the nearest part of the dwelling house, and was 80 feet long by 36 feet wide, with a slate roof, and sills 8 x 8, 6 x 6, and 5 x 5. The alarm was received at the fire station in Rutland at 9.10 p.m. on December 14, 1932, and by the time the apparatus reached the scene, the barn was all in flames. No one was about the place. The evidence on the part of the defendant was to this effect: When the firemen reached the farm, one of them broke open the front door of the house, which was apparently locked, and searched for any possible inmates. The heat was so intense that the paint on the side of the house next to the barn had commenced to blister, and a stream of water was directed against the house to prevent its burning. No one was found in the house, but on the cellar floor, on the side near the barn, there was a smouldering fire in *441 a rubbish pile, which had evidently been burning more fiercely, because the ceiling of the cellar directly above it was scorched and charred. Not far away there was a pile of inflammable material, two feet high, consisting of an egg crate, a pasteboard box, papers and rags, all saturated with kerosene oil, but not ignited. On the north wall of the cellar, on top of the stonework and under the beams supporting the house, were stuffed rags soaked in kerosene and extending for a distance of 20 feet. More rags soaked in kerosene were found in a similar position on the west wall. No window in the cellar was opened. Kerosene had been spilled on the floor of one of the rooms on the first floor. On the second floor, near the head of the stairs, the baseboard had been pulled off and saturated with kerosene and, behind a door, there was a place in the wall where the plaster had recently been knocked off, a lath pulled out and in the aperture there were rags soaked in kerosene. The plaster around the hole was wet with kerosene. A can containing a small quantity of kerosene was found in the attic and the floor was wet with the liquid. On the floor of one of the first floor rooms there was a liquid which burned with a blue flame when a lighted match was applied to it, and was apparently alcohol. On the morning of the day of the fire, Belock purchased five gallons of kerosene of which he used one quart in spraying his cows for lice, and one quart in filling two lanterns. About two weeks before that he had received, from the agent of the mortgagee, a demand for a payment upon the mortgage debt, which then amounted to $9,500. When Belock reached the farm on the evening of the fire, the barn was practically consumed, and there was evidence tending to show that he exhibited no surprise or curiosity, but went calmly into the house where he kindled a fire in a stove for the purpose of warmth. It was the theory of the defense that Belock intended and prepared to burn both barn and house; that he succeeded as to the former building, but failed as to the latter because there was no opening in the cellar, and so no draft for the fire he had kindled.
The plaintiff introduced evidence tending to show that Belock, his wife and one son were engaged in milking between five and six o'clock in the afternoon. The cow barn was some 600 feet from the house. At about six o'clock they went to the house, had their supper, and along with all the other children then at home, they went in their automobile to visit a friend who *442 lived about two and one-half miles away. On the way, they were joined by remaining child, a daughter who was employed in Rutland, and three of the sons stopped at a bowling alley where they worked as pin boys. The time of leaving the farm was about 20 minutes to seven, and they all returned shortly after 10 o'clock, while the fire was in progress. Two Italians, one named Frank Drury, and the other known only as Joe, had been intermittently occupying one of the first floor rooms in the house, for the purpose of manufacturing beer. There were two entrances to the room, one from the hallway, and the other from the yard, on the side next to the horse barn. It was upon the floor of this room that the liquid which burned with a blue flame was discovered. On the morning of the day of the fire, Belock ordered the two Italians off the premises, because they had not paid their rent, and one of them threatened that he would "get back at him." They departed that day taking a part of their apparatus with them, but leaving behind a three-burner oil stove, along with some other articles. They moved a large vat out upon the porch. There was an entrance to the cellar from the outside, and in both the horse barn and in the house there was personal property not covered by the policies in suit. Belock denied all knowledge of the fire or agency or participation in causing it. His evidence tended to show that one of the cellar windows was broken.
With the evidence standing thus, and taking it most favorably for the plaintiffs, it is clear there was a question for the jury, and, consequently, there was no error in the denial of the defendant's motion for a directed verdict. It follows that the granting of the motion to set the verdict aside, so far as the first and fifth grounds were concerned, was error. These rulings were upon questions of law, and, as we have seen, the issue was the same in each instance.
But whether the discretionary ruling, by which the verdict was set aside upon the second ground, should be sustained is another matter. The question is not precluded by the previous denial of the motion for a verdict. Bradley v. Blandin,
The plaintiffs stress the ill will of the evicted Italians, and their opportunity for revenge, and the fact that the testimony connecting Belock with the fire was circumstantial. But such evidence was admissible, and, if sufficiently persuasive, might establish the fact in issue. Girard v. Vermont Mutual FireInsurance Co., supra, page 335 of 103 Vt.,
These circumstances, the weight to be given to them and the inferences to be drawn from them, were for the trial court to consider in passing upon the motion. We must presume that its discretion was exercised, since the law required it. State v.Stacy,
Judgment affirmed, and cause remanded.