Slater v. Cosmopolitan Mutual Insurance

In this action the plaintiff seeks to recover under policies of fire insurance issued in standard form. The defendant denied liability on the ground that no proofs of loss had been provided by the plain*200tiffs as required by the policies. It appeared at the trial that the companies denied liability on the further ground that the alleged fire was a “friendly fire” and not covered by the policy. There is no recital in the report concerning the fire or the manner in which it happened. Aside from the fact that the report states that, “The Company sent an agent or representative to the insured for the purpose of investigating, estimating or appraising the loss or damage or adjusting the claim therefor.”, there is no evidence pertaining to any of the issues presented by this report. Whether there was evidence to warrant a finding for the plaintiff is a matter of pure conjecture. Even if there were such evidence the court was not .compelled to believe it. We must assume from the fact that the court ruled that the evidence warranted a finding against the' defendants that there was such evidence.

However, the court ruled at the request of the defendant that “on all the evidence the plaintiffs cannot recover.” We cannot reconcile this ruling with that made at the request of the plaintiffs to the effect that the evidence warranted a finding for the plaintiffs.

Although the plaintiff filed a motion for a new trial on the basis of these inconsistent rulings, the court did not clarify the situation with respect to same by correcting them. While it is true that the court amended its rulings by stating that it did not find that the fire was an unfriendly one, there is no *201evidence in the report to support such a finding.

Under the circumstances the order of the Division must be

Finding for defendants vacated. New trial ordered.