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Thorp v. American Aviation and General Insurance Co.

decided: May 19, 1954.

THORP ET AL.
v.
AMERICAN AVIATION AND GENERAL INSURANCE COMPANY ET AL.



Author: Kalodner

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

This is an action brought by the plaintiffs, Harold G. Thorp (individually and trading as Runnemede Theatre) and Florence Thorp, on six policies of fire insurance, all in the same form, issued by the six defendant insurance companies. Plaintiffs were the owners of the Runnemede Theatre located in Runnemede, New Jersey, on which they carried fire insurance in a total amount of $80,000. Of the latter total, $65,000 was attributable to policies issued by the defendants, of which $55,000 was on the building, $9,000 on the contents of the projection booth, and $1,000 on furniture, fixtures and equipment.*fn1 The policies provided that the companies insured plaintiffs "* * * to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss * * * against all Direct Loss by Fire * * *"

On February 9, 1950, a fire occurred in the insured premises, resulting in substantial damage.In their Complaint filed September 19, 1950, plaintiffs alleged that "Each and every of the said defendants has failed and refused to pay the sums due plaintiffs under the respective policies."

The trial resolved itself primarily into an inssue of fact as to the amount of the "actual cash value" of the insured property at the time of the loss. After his charge, the trial judge submitted interrogatories to the jury.*fn2 The questions to be answered and the jury's findings were as follows:

"1. What was the actual cash value of the building? $61,500.

"2. What was the actual cash value of the furniture, fixtures, and equipment, exclusive of the contents of the booth? $12,000.

"3. What was the actual cash

"3. What was the actual cash value of the contents of the booth? $8,000."

At the direction of the District Court, judgment was then entered on the special verdict of the jury against each insurance company in the proportion which its coverage bore to the total insurance on the particular type of property.*fn3 This amounted to a total award of $60,950.42. No interest was included in thejudgment.

Defendants filed a Motion for New Trial, setting forth 65 reasons, a Motion to Set Aside Findings of the Jury, setting forth 10 reasons, and a Motion for Findings by Court and for Judgment for Defendants. These motions were all denied.

Plaintiffs filed a Motion to Amend Judgment, to add interest thereto from the time of the fire on February 9, 1950, to the time of the findings by the jury on December 11, 1952. This motion was granted and interest was awarded at the rate of three percent per annum for that period. The District Court also ordered that interest should run on the amended judgment from December 11, 1952, at the legal rate of six percent per annum.

Defendants appealed from the final judgment as amended. Plaintiffs cross-appealed from the award of interest at the rate of three percent instead of six percent for the period from the date of the fire on February 9, 1950, to the time of the findings by the jury on December 11, 1952.

As to defendants' appeal (No. 11,155):

Defendants complain (1) the trial judge did not adequately charge the jury; (2) the jury's verdict was "contrary to the law, the evidence and the weight of evidence"; (3) the trial judge erred in his rulings as to admissibility of certain documentary evidence; (4) plaintiffs' counsel was guilty of prejudicial conduct; and (5) there was an erroneous allowance of interest.

The crux of the defendants' contention on the first point is that the trial judge failed to instruct the jury adequately on the legally established methods of determining the critical question involved - the "actual cash value of the property at the time of the loss."

This contention comes with mighty poor grace from the defendants. First, they did not object to, or call to the trial judge's attention, any error or inadequacy in his charge before the jury retired as they were required to do by Rule 51 of the Federal Rules of Civil Procedure.*fn4 Second, the trial judge charged the jury as to the standard of proof with relation to "actual cash value" in conformity with the defendants' own declared view of the applicable law.*fn5 In doing so he affirmed 14 of Defendants' Points for Charge in their entirety, two others in part and denied only six, which were either merely repetitious or clearly erroneous as put. In sharp contrast, he denied 15 of Plaintiffs' Points for Charge, affirmed one in part and two as requested. Reverting briefly to the defendants' failure to make timely objection to the alleged errors or inadequacy in the charge, we observe that while there may be exceptional cases which will prompt an appellate court to consider grounds of error not raised below, review in such instances should be exercised only where injustice might otherwise result*fn6 and in ...


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