CHARLES STORES, INC. v. AETNA INSURANCE COMPANY

GODBOLD, Circuit Judge:

On the first appeal in this suit over the proceeds of fire insurance policies on a Mississippi building we reversed a jury verdict for the insurers because evidence that the insurers had waived policy defenses was erroneously excluded. 428 F.2d 989 (CA5, 1970). Following a second jury trial the court entered judgment for the insured in the amount of $199,572.82 based on the jury's answers to special interrogatories. The insurers appealed.

I

The insurers were not entitled to a directed verdict on the ground that as a matter of law the insured had failed to comply with the protective safeguard provision of the policies:

A credit in the rate was granted because of the existence of interconnected sprinkler and alarm systems. When firemen arrived at the fire the water valve for the sprinkler system was turned off, which also disconnected the alarm system. Additionally, a screw connection in the alarm system was found unfastened the next day. The insurers claimed that the fact that the sprinkler system was off was a breach of warranty which terminated the coverage. Accepting arguendo that a breach of the above-quoted provision would terminate coverage, there was evidence that the sprinkler system was repaired and found to be in working order two days before the fire. The jury could infer that the fire, which, without dispute, was of incendiary origin, was set by persons whose acts were not chargeable to the insured and that whoever set the fire disengaged operative safeguard devices, and that, therefore, the insured complied with its duty to maintain the system "so far as is within his control." Neither the language of the policy nor the cases cited1 support an interpretation of the policy so sweeping as that urged by appellants — that the insured is a guarantor of the continuing effectiveness of safeguard devices so long as it is in control of the premises and that such guarantee is breached and coverage suspended if the cause for the inoperative condition of safeguards is the act of persons other than the insured done concurrently with the fire itself. An insured's overall control of the premises does not give it control in the sense that it can prevent the act of an arsonist who cuts off the sprinkler system while setting a fire. To assure itself, under appellants' construction, of the benefits of a safeguards clause the insured would have to keep a watchman on the premises. Presumably if the fire itself rendered the safeguards inoperative the insurers would not claim coverage was suspended. We perceive no difference if, as the jury could find, the safeguards were disengaged by the person who started this incendiary fire.

II

The insurers say that the trial court did not submit to the jury the protective safeguard defense, or if submitted the submission was not correct. Interrogatories Nos. 7 and 10 read as follows:

There was no objection to either interrogatory. Nevertheless appellants say on appeal that interrogatory 10 was not a proper submission to the jury because: (a) it is undisputed that before the fire the sprinkler system was not in working order, and (b) the protective safeguard provision of the policy has no relationship to increase in hazard because the mere fact of inoperative safety devices terminates coverage without regard to hazard. The second clause of the interrogatory is, as appellants say in (b), probably not relevant to the protective safeguards clause. The linchpin of appellant's argument is not, however, the giving of the irrelevant second clause of the interrogatory but the theory that the undisputed evidence required an affirmative answer to the first clause, and, since no one would disagree that safety devices not in working order would increase the hazard, the only permissible answer to interrogatory 10 was "Yes," and the jury having answered "No" the answer must be set aside as unsupported by the evidence. This argument collapses because the linchpin fails. There was evidence that two days before the fire the sprinkler system was repaired and put in good working order. The jury was free to conclude that the devices were operative up to the time of the fire.

The District Judge pointed out in his order denying appellant's post-trial motions that he considered the evidence conclusively to show that whoever set fire to the store disconnected the safety devices (and at several places in the charge he referred to this as a fact), and he considered (as do the appellants) that no one could disagree that this increased the hazard, thus what interrogatory 10 was designed to do, and did do, was submit the question of whether before the safety mechanisms were disconnected they were in good order. The trial judge went on to say:

Interrogatory 7 established that the setting of the fire and the concurrent cutting off of the sprinkler system were not done with the knowledge, consent (etc.) of the insured. In summary, the trial judge pointed out in his statement of reasons that Interrogatory 10 established that before the fire the safeguards systems were in proper working order; that the evidence conclusively showed that at the time of the fire they were turned off by whoever set the fire; and that Interrogatory 7 established that plaintiff neither knew of nor consented to the setting of the fire and the concurrent cutting off of the sprinkler system. We think that the absence of objections to the form of interrogatories 10 and 7 and the application of the answers by the trial court, as authorized by F.R.Civ.P. 49(a)2 and as explained in the post-trial order, dispose of appellants' contention.

III

The appellants offered and the trial court excluded statistical data tending to show that in its fiscal year ending two months before the fire the insured's financial position had deteriorated and, as of the end of the fiscal year, was poor. This evidence was offered on the theory that it was evidence of an increase in "moral hazard" to be considered by the jury in connection with the policy provisions saying:

We cannot say that the exclusion was error. The Aetna policy was issued two days before the fire, the Hartford policy approximately six months before the fire. There is no showing to us that the financial data in question tended to establish any increase of hazard after the date of issuance of either policy. The excluded evidence consists of a certified public accountants' report covering Charles Stores' fiscal year beginning September 1, 1963 and ending August 31, 1964. Obviously this data relates not at all to any period subsequent to issuance of the Aetna policy on November 16, 1964. Except for gross sales figures,3 the data was not broken down by months or quarters but rather was computed for the entire fiscal year. Consequently the most that appellants could have demonstrated by its use would have been that the Hartford policy, issued on June 5, 1964, was issued during the last quarter of a fiscal year during which the financial picture of the insured darkened, that is, that Hartford undertook coverage of a deteriorating insured. The direction or magnitude of changes in the insured's financial condition in the period subsequent to issuance of the Hartford policy cannot be accurately inferred from this limited data.

Additionally, no authority is cited which, in our view, indicates that Mississippi would adopt a rule that increase in hazard "by any means within the control or knowledge of the insured" includes a worsening financial condition of the insured unaccompanied by any physical change in the condition, usage, or occupancy of the premises.4

A part of the incendiary means employed to set fire to the instant premises was a sun lamp. The appellants offered evidence that approximately six months earlier an abortive effort had been made to set fire to another store owned by the insured in a different city, and that the same sun lamp was claimed to have been part of the incendiary scheme that was there unsuccessfully used. This evidence was not offered as tending to prove that the insured had set both fires. Rather the insurers represented to the trial court that they did not claim arson by the insured. See footnote 4, supra. The proffer was upon the theory that the mere presence in the premises of this common electrical appliance, allegedly once used to attempt to start a fire in another store of the insured, demonstrated indifference and apathy by the insured to the possibility that the appliance might again be used for a similar unlawful purpose by someone other than the insured and thus was probative of an increase in hazard. We agree with the District Judge who excluded this evidence as too tenuous for the purpose for which it was offered. See, as to an even less attenuated situation, 8 Couch, Encyclopedia of Insurance Law (2d), § 37:715, p. 327:

See also, 5 Appleman, Insurance Law & Practice, § 2942, p. 17.

IV

There was evidence that in the course of a post-fire count of merchandise made for the purpose of calculating the value of inventory, items of the value of approximately $1,500 were counted twice at the direction of Virgil Thompson, an officer of the insured. The policies provided:

The position of insurers is that the jury's answers to interrogatories with respect to this issue required entry of judgment for defendants. Pertinent interrogatories are numbers 3, 4 and 5. Numbers 3 and 4 are:

Interrogatory 5 related to whether Thompson in directing the double count was acting in his own behalf or on behalf of the corporation. Initially the interrogatory was inaptly worded, but after it was amended and explained at some length the jury answered unequivocally that Thompson was acting on his own behalf and not for the company.

The appellants urge, however, that they are entitled to entry of judgment because it is undisputed that the existence of the double count was known to Lucien Hill, the store manager, and that Hill's knowledge is imputed to the insured. Accepting that as correct does not, however dispose of the question of whether the insured, knowing what Hill knew, "impliedly concealed or misrepresented" or engaged in "fraud or false swearing." The jury found that Thompson was acting fraudulently but for his own purposes and adversely to the interest of the corporation. Whether Hill's knowledge of Thompson's actions, as imputed to the corporation, constituted fraud or wilful concealment or misrepresentation was not the subject of any interrogatory and was, therefore, by Rule 49(a) left to be the subject of a finding made or deemed to be made by the court. A trier of fact could conclude that, insofar as Hill (and thus the corporation via Hill) was aware, Thompson's acts were no more than negligence, inadvertence or simply errors occurring in the mechanical task of determining in a relatively short period of time, by physical count of a great number of items, what was on hand. Additionally, on the issue of the insured's state of mind concerning the fact of a Thompson-directed double count, the president of the insured testified that the day after the inventory, Hill told him of the double count and he (the president) told the insurance companies about it.

V

The trial court allowed interest on the judgment from April 13, 1965, a month after the proof of loss was filed, under the discretionary power recognized by the Mississippi Supreme Court in Commercial Union Insurance Company v. Byrne, 248 So.2d 777 (Miss.1971). We cannot say that the discretion was abused.

Affirmed.