Fire Ass'n of Philadelphia v. Mechlowitz, 266 F. 322

266 F. 322 | 2d Cir. | 1920

HOUGH, Circuit Judge

(after' stating the facts as above). It is urged that the proceedings at the close of evidence in the court below amounted to a request by both parties for a directed verdict, and therefore the final action of the trial court was a conclusive finding of fact, if there was any evidence tending to support it.

[ 1 ] It is also said that, since the plaintiff in error did not ask to go to the jury on some particular question of fact, the exception taken 'is worthless. There has been considerable difference of opinion over this question of practice, both in the courts of the United States and those of the state of New York. It may be true that the rule as stated in Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654, and in Bowers v. Ocean, etc., Corp., 110 App. Div. 691, 97 N. Y. Supp. 485, affirmed 187 N. Y. 561, 80 N. E. 1105, is consistent with the argument of defendants in error; but, for this court, Empire State, etc., Co. v. Atchison, etc., Co., 210 U. S. 1, 28 Sup. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70, is ruling authority, and under that decision the motion of the attorney for plaintiff in error was sufficient to preserve whatever rights his client had. Witli even greater distinctness the matter has been settled the same way in New York by Brown Paint Co. v. Reinhardt, 210 N. Y. 162, 104 N. E. 124. This court arrived at the same conclusion in Sigua Iron Co. v. Greene, 88 Fed. at page 210, 31 C. C. A. 477. See, also, Sampliner v. Motion, etc., Co., 259 Fed. at page 154, 170 C. C. A. 220.

We have treated this matter of practice as if it were true that both parties did move for directed verdicts; the plaintiff did so, but the defendant merely moved to dismiss the complaint; i. e., for a nonsuit. The difference is obvious and material. But we have ruled upon the question argued.

[2] The substantial point before us is whether the trial judge was justified in directing a verdict for the plaintiff. The rule of directed verdicts is, in the courts of the United States, usually put as requiring a direction when a verdict, if rendered the other way, would necessarily be set aside. Patton v. Railway, 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Randall v. Baltimore, etc., Co., 109 U. S. at page 482, 3 Sup. Ct. 322, 27 L. Ed. 1003. The rule has usually been stated when the defendant had the direction, but the rule is not different when plaintiff prevails; for it is said that plaintiff should have the •directed verdict when “giving the defendant the benefit of every inference that could have been fairly drawn from the evidence, written and oral, it was insufficient to authorize a verdict in his favor.” Marshall v. Hubbard, 117 U. S. at page 419, 6 Sup. Ct. 806, 29 L. Ed. 919. The reason of any rule on this subject is stated in North Penn., etc., Co. v. Commercial Bank, 123 U. S. at page 733, 8 Sup. Ct. 269, 31 L. Ed. 287:

“It would be an idle proceeding to submit tbe evidence to tbe jury, when tbey could justly find only in one way.”

See Baldwin v. Jardine, etc., Co., 261 Fed. at page 865, and cases cited.

[3] Applying these considerations to the case at bar, it must be remembered what were the issues created by the pleadings, and to which the material and relevant «evidence was necessarily directed. They were, first, whether the plaintiffs below had been guilty of fraud in effecting or attempting to collect the insurance; and, second, what was the money value of plaintiff’s loss?

One point was as much in issue as the other, and both were questions of fact normally for the jury. That the question of fraud was much more important than that of value is of no consequence. The jury was as much entitled to pass on a minor as on a major point; and it did not follow at all, that if no proof of fraud was adduced, the plaintiffs below were entitled to collect the face of the insurance policy. The policy was not a valued one, and the insured were required by the terms of their contract affirmatively to prove, not only that they had a loss, but wha.t loss they had, and it was for the jury to reduce that loss to dollars and cents.

To support the verdict reliance is placed upon the statement of law made in Second National Bank v. Weston, 172 N. Y. at 258, 64 N. E. 952:

“Where * * * tbe evidence of a party to tbe action is not contradicted by direct evidence, nor by any legitimate inferences from tbe evidence, and it is not opposed to tbe probabilities, nor in- its nature surprising or suspicious, there is no reason for denying to it conclusiveness.”

The statement is true, but, like many other truths, must be applied according to the circumstances.

In this case we refrain from expressing opinion as to whether there was any evidence sustaining the defense of fraud; but we are compelled to hold that, where the assessment of damages depends upon the interested testimony of a plaintiff, both as to quantum of goods destroyed and the value of such goods, the credibility of the witnesses, without whose evidence the plaintiffs made out no case at all, is eminently for the jury.

In Craft v. Northern, etc., Co. (C. C.) 62 Fed. at page 739, affirmed 69 Fed. 124, 16 C. C. A. 173, it is said to be the province of the jury to pass upon the credibility of all witnesses whether they are contradicted or not; and while a witness is presumed to speak the truth, the manner in which he testifies and the character of his testimony are sufficient to overcome that presumption. (This language, although quoted in part from the Code of Oregon, is but declaratory of historic law.) We held in Sigua Iron Co. v. Greene, supra, that the testimony of a party on a material issue, though uncontradicted, should be submitted to the jury, if his adversary so requests.

The matter is well summed up in Toledo, etc., Co. v. Connolly, 149 Fed. 398, 79 C. C. A. 218. There the trial judge had been requested to charge almost in the language of Second National Bank v. Weston, supra. The court did so, but — -

“applying it to the case in hand, reminded the jury that a witness might be contradicted, not simply by a witness swearing to the opposite, but by the improbability of his story, and by anything, either in the testimony as given or in the circumstances of the case presented, which in the judgment of the jury tended to discredit his statements.”

The court added:

“Common sense is to be applied here as everywhere; and no technical rule of law harnesses your judgment or controls your common-sense view, of what is the truth, when it comes from the witness stand.”

We think this well put, and in this case there was direct contradiction of the principal witness for plaintiffs below as to the value of the salved goods; and there were some conspicuous absences from the witness stand of men shown to be in court, and whose probable knowledge of the quantity of goods actually on the fire-damaged premises , should have been superior to that of any one who testified for the insured. Under such circumstances, the credibility of plaintiff’s testimony was for the jury, and it was error to order a verdict.

We have discussed the rule of directed verdicts, as being a legal question ’on which opinion lias varied. But, as this cause must be tried again, we point out that plaintiffs below, in order to prove that they had lost by fire certain goods on the premises of another, largely, if not wholly, relied upon introducing in evidence against the insurer the receijits of their contractor. Such receipts were strong evidence as between Mechlowitz and his contractor, but are not evidence (so far as this record shows) as against the insurer. They should not have been admitted.

Judgment reversed, with costs, and new trial awarded.