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January 7, 1959


The opinion of the court was delivered by: John E. Miller, Chief Judge.

The motion of defendant for a new trial has been considered along with brief in support thereof. The case was originally tried on September 11, 1958, to the court sitting without a jury, and on September 19 formal findings of fact and conclusions of law were filed and judgment for the defendant entered thereon. Jackson v. M.F.A. Mutual Ins. Co., D.C., 165 F. Supp. 388.

In due course the plaintiffs moved for a partial new trial, and all parties submitted briefs on the questions involved. The plaintiffs' motion for partial new trial was granted, and on November 24, 1958, a second hearing was held. On December 1, 1958, the court filed its second opinion, D.C., 169 F. Supp. 633, and in accordance therewith entered judgment on the same day in favor of the plaintiffs for the face amount of the policy, together with interest and the statutory penalty and an attorney's fee. The facts as developed at the hearings are outlined in the findings of fact and in the court's opinion of December 1, and there appears to be no need to review them upon this motion. Counsel who represented plaintiffs at both hearings is now deceased. The plaintiffs have been adequately notified of the defendant's motion but had not secured new counsel at the time the motion of defendant was considered.

The defendant first objects to certain findings of fact made by the court. It disputes the finding that plaintiffs' lessee was to take possession of the insured property on March 27, 1957, and cites testimony that the lease agreement was "to take effect" on April 15, 1957. Regardless of the rights as conveyed by the lease agreement itself, the plaintiff, H.P. Jackson, and the lessee, John Holland, both testified that Holland took possession on or about March 27, 1957, notwithstanding that the effective date of the lease was April 15. There is no direct evidence to the contrary, and the court accepted the testimony of both Holland and Jackson regarding the date of possession.

The defendant also contends that the court should have accepted the testimony of Eugene Pinkley rather than the testimony of H.P. Jackson, one of the plaintiffs, regarding the conversation in March 1957 as to the change in occupancy. Specifically the defendant contends that there is no foundation for the court's statement in its opinion of December 1 that Pinkley remembers little of this conversation. A part of the testimony of Mr. Pinkley, as given at the original trial, is as follows:

    "Q. Would you state the nature of the discussion?
  A. The best I remember, Mr. Jackson said they were on
  a deal to lease it to a manufacturing company and if
  the deal went through would it change the premium or
  anything. And I told him "Yes it would change it
  some, I didn't know how much." At that time they had
  not move — at that time the occupancy of the
  building had not been changed.
    "Q. Before the fire and subsequent to this
  conversation did you ever have any other discussion
  or conversation with the plaintiffs in this case
  concerning this use and occupancy? A. No, sir, not
  that I remember of.
    "Q. Did you ever furnish to M.F.A. Mutual Insurance
  Company a notice of this change in occupancy? A. No.
    "Q. Mr. Pinkley, did you ever yourself have actual
  notice of this change in use and occupancy? A. Well,
  I knew it actually from reading the paper and I knew
  they moved in there, but so far as the insurance
  angle of it I didn't think anything of it." (Emphasis

After seeing and hearing the witnesses, the court believed and still believes it to be a fact that Pinkley either did not remember the conversation or that he was being extremely evasive. Therefore, the testimony of the plaintiff, H.P. Jackson, was accepted as true.

Finally, the defendant objects to the court's finding that "shortly after the renewal premium was paid by Jackson, he received in the mail a premium receipt." The objection appears to be that the word "shortly" is not a definite time. By the defendant's calculation the premium receipt was received by the plaintiff, H.P. Jackson, no sooner than 17 days after the premium was paid. This calculation appears to be approximately correct, but the objection to the court's terminology does not appear material. The record speaks for itself, and while the calculations of the defendant in its brief appear to be correct, there does not appear to be any reason for granting a new trial on this basis.

The second point relied upon by the defendant is that it was surprised at the second trial by the introduction of certain matters to which no issues had been formulated. The defendant objects on the ground that the court's decision of December 1 is based upon a determination of apparent authority and upon the introduction into evidence of the premium receipt received by H.P. Jackson (plaintiffs' Exhibit No. 8). It is true that the issue of apparent authority was not specifically pleaded in the complaint. However, at the trial on November 24, when the premium receipt was introduced during the testimony of the plaintiff, H.P. Jackson, counsel for defendant made no objection on any ground:

    "Q. Is that the receipt that was sent to you by the
  M.F.A. Insurance Company? A. Yes, sir.
    "Mr. Wilson: The plaintiff offers this fire premium
  insurance receipt as ...

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