LIVERPOOL & L. & G. INS. CO. v. N. & M. FRIEDMAN CO., 133 F. 713

RICHARDS, Circuit Judge. This case grew out of the destruction early on the morning of July 18, 1901, of a four-story brick building in Grand Rapids, Mich., known as the Luce Block. The defendant in error conducted a department store in the building, and the policy sued on was upon his stock and fixtures. The occurrence resulting in the destruction of this building and its contents was before us in the case of Phoenix Insurance Company v. Luce, 123 Fed. 257, 60 C. C. A. 655, in which we affirmed a judgment on a policy of insurance on the building.

In that case, as in this, it was a question whether there was a fire in the building before it fell; and we held that the testimony tending to prove there was such fire was both material and substantial, and justified the trial judge in declining to direct a verdict for the defendant upon the ground there was no evidence warranting a submission of the case to the jury.

The policy sued on contained, among others, the following conditions : “This company shall not be liable for loss caused directly or indirectly, by invasion, insurrection, riot, civil war or commotion * * * or (unless fire ensues, and in that event for damage by fire only) by explosion of any kind.” “If a building or any part thereof fall except as the result of fire, all insurance by this policy on such building or its contents shall immediately ¿ease.” In this case, as in the Phcenix Case, the defendant contended there was no fire in the building before it fell, and it fell from structural weakness due to certain alterations then going on.

There was a verdict for the plaintiff; the jury finding, in answer to questions, that there was a fire burning in the building before and at the time it fell, and that no part of it fell except as the result of fire. The case went 'to the jury about 2 o’clock on the afternoon of the day before Thanksgiving Day.

At 5 o’clock that afternoon the trial judge sent for the jury, and, no agreement háving been reached, permitted them to separate and go to their homes for Thanksgiving; cautioning them not to talk to any one or permit any one to talk to them about the case, and directing them to return at 2 o’clock on the afternoon of the day following Thanksgiving and resume their deliberations. This was done in the absence of counsel, and, when counsel for the defendant were advised of it, they took an exception, which was allowed.

It is claimed, first, the court erred in refusing to give certain charges; and, second, in permitting the jury to separate after the submission of the case. 1. As to the refusals to charge. The second and third requests, which were refused, were as follows: “Second. Such a fire you are not authorized to find by conjecture, simply because there were combustible materials in the building at the time, nor because there were conditions in the building at the time it fell which might possibly have produced a fire. “Third.

The plaintiff, to recover, must show by a preponderance of the evidence that there was a fire consuming the building or its contents before it fell. His showing that there might have been such a fire is not sufficient to authorize plaintiff’s recovery.” The charge given by the court in this case was substantially that approved by us in the Phoenix Case.

The court clearly charged the jury that it was incumbent upon the plaintiff, by a preponderance of the evidence, to satisfy them that fire existed in the building before it fell, and that in determining this question they should consider all the evidence bearing upon the subject; that if they were not convinced, and could not say from the evidence, that there was fire in the building before it fell, then their verdict must be for the defendant. This was sufficient.

It advised the jury they were to consider not simply the matters referred to in these requests, but all the evidence, in determining whether there was or was not a fire in the building before it fell. For the court to have mentioned certain evidence, and instructed the jury they were not to conjecture from it that there was a fire in the building, would not only have discredited the evidence mentioned, but led the jury to believe there was no other evidence upon that point.

Now, we held in the Phoenix Case that, looking at the entire record, the evidence tending to show there was fire in the building before it fell was both material and substantial. The same evidence is present in this case. A finding based upon such evidence could not, even prospectively, be treated as a mere conjecture. The requests were properly refused. The sixth request was as follows: “Sixth. An explosion, to render defendant liable, must be caused by fire-in the building or its contents.

The exploding of gas by a spark, there being no fire at the time consuming the building or contents, would not render defendant liable.” The claim of the plaintiff, as shown by the record, was that the building fell as the result of a progressive fire, and not from explosion, unless caused by such progressive fire.

While the jury was instructed that an explosion caused by a progressive fire would be a fire.loss, within the meaning of the policy, it was also instructed that there could be no recovery, even though the building was on fire before it fell, unless it fell as a result of such fire, and that a collapse caused by an explosion not resulting from fire would defeat a recovery. Upon this point the court said: “If an explosion occurred which was not caused by a progressive fire, and that explosion was the cause of the collapse, the plaintiff cannot recover.

If you find there was fire in the building before, and if you find from this fire, which was progressing at the time, some explosion occurred, that, under the terms of the policy, would be a fire loss, and the defendant would be liable for the loss which ensued.” We think this covers all of the request which was based upon the evidence. It is now suggested that an explosion caused by a spark might have occasioned damage to the stock, and that there was no evidence distinguishing this damage from that caused by a subsequent fire, and therefore could be no recovery.

But there is nothing in the record tending to show there was any damage from an explosion caused by a spark. The suggestion, coming after the trial, is at best a “mere conjecture.” The court was right in refusing the request.' 2. This brings us to the separation of the jury. It is contended that

section 914, Rev. St. U. S. [U. S. Comp. St. 1901, p. 684], required the court to follow the Michigan practice, and that under it, and by the common law, the separation of the jury after the submission of the case, although by permission of the judge, vitiáted the verdict.' It is not necessary to determine what is the rule in Michigan, for

section 914 no more places federal judges under state regulations in controlling juries than in charging them. The power of federal judges, as defined by the common law, in the submission of cases and the control of the deliberations of juries, still remains. Indeed, it is a question whether Congress can, under the Constitution, abrogate or abridge such power. As was said by the Supreme Court in Nudd v. Burrows, 91 U. S. 426, 442, 23 L. Ed. 286: “The identity required [by

section 914] is to be in ‘the practice, pleadings and forms and modes of proceedings.’ The personal conduct and administration of the judge in che discharge of his separate functions is, in our judgment, neither practice, pleading, nor a form nor mode of proceeding, within the meaning of those terms as found in the context.” In Railroad Company v. Horst, 93 U. S. 291, 23 L. Ed. 898, it was held (page 300, 93 U. S., 23 L. Ed. 898) that “matters relating merely to the mode of submitting the case to the jury” do not come within

section 914; and in Chateaugay Iron Company v. Petitioner, 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508, the court said (page 554, 128 U. S., 9 Sup. Ct. 150, 32 L. Ed. 508) that “the object of

section 914 was to assimilate the form and manner in which parties should present their claims and defense, in the preparation for the trial of suits in the federal courts, to those prevailing in the courts of the state.”

Section 914 having no application, did the mere separation of the jury after the submission of the case vitiate the verdict at common law? We are clear it did not. All the members of the jury lived outside Grand Rapids, where the fire occurred and the trial was held. No improper conduct on the part of any member of the jury during the separation was shown or charged. It is not claimed that the jury, or any member of it, was approached or tampered with, or in any way improperly influenced or prejudiced, by reason of the separation.

Conceding that a new trial may properly be granted where it is shown that prejudice resulted from the separation, no occasion for the exercise of such power was shown in this case. Walton v. Wild Goose Mining Company, 123 Fed. 209, 60 C. C. A. 155, 157; 12 Enc. Pl. & Pr. 579, and cases cited; Thompson & Merriam on Juries, §§ 310, 315, 316. In conclusion, it is proper to point out that, in permitting the separation complained of, the trial judge but continued the practice pursued by him in McEvoy v. Mangold Milling Company, 124 Fed. 1018, 59 C. C. A. 681.

That case was before us upon the very question involved in this case, namely, whether the judge had the power to permit the jury to separate after the case had been submitted, was fully argued, and the judgment affirmed on October 18, 1902, although without a written opinion. It is now sought to distinguish it on the ground that the case was one in bankruptcy, where the rules governing juries in common-law actions do not apply; but the bankruptcy act of July 1, 1898, provides (section 19a, c. 541, 30 Stat. 551 [U. S. Comp.

St. 1901, p. 3429]), “A person against whom an involuntary petition has been filed shall be entitled to have a trial by jury, in respect to the question of his solvency,” etc.; and the Supreme Court held in Elliott v. Toeppmer, 187 U. S. 327, 332, 23 Sup. Ct. 133, 47 L. Ed. 200, that when, under this provision, “a jury trial is demanded, it is demanded as of right, and the trial is a trial according to the course of the common law.” The judgment of the lower court is affirmed.