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.
"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 ...