*441NO. 8240
COURT OF APPEAL PARISH OF ORLEANS
LEONARD HOCHSTEIN versus AMERICAN AUTOMOBILE INSURANCE COMPANY.
Dissenting ©pinion of Dinkslspiel; J-
Dintelspiel; J
Plaintiff institutes this suit against the defendant, alleging that the defendant company' is indebted to him in the sum of $358,90, with legal interest from judicial demand until paid, and twelve per cent on said amount of principal and interest for damages, and the further sum of $100,00, as Attorney’s fees. Averring further that on the 13th of.May, 1930, defendant company issued its fire and liability polioy, annexed to this petition and made part thereof, in favor of plaintiff, for the sum of Eleven Hundred Dollars, to cover any loss by fire, on the Cadillac Touring Car belonging to plaintiff; that said polioy was to be in force for a period of twelve months, commencing May 13th, 1930 and ending May Í3th, 1S31. That under the conditions Of said policy, defendant oompany bound itself as the insurer to Indemnify plaintiff for any loss to be incurred in accordance with the terms of its polioy; and continuing, plaintiff represents that on May 17tb, 1930, at about noon, a fire occurred, in which said automobile was damaged, and describing the damages states that the blocks, pistons and rings, bushings bearings were burned completely. Plaintiff had the damage repaired, paid the bills in order to put the automobile baok in proper shape and has complied with all the terms and conditions of the polioy, and notified defendant oompany, through its agents, of the loss and furnished proper proofs of loss,to the defendant. Thst subsequently defendant oompany, replying to pleintiff’s proofs of loss, denied all liability under seid policy. Plaintiff further avers that under the Act of the Legislature Ho. 168 of 1908, a fire insurance company which fails to pay its losses on a polioy of insurance shall be liable in addition to the amount of loss, for twelve per cent damages on the total amount of loss determined by a Court of competent jurisdiction, and a reasonable *443Attorney's fees, and in this si^it $1U0.00 is claimed as Attorney's fees.
citation and . The prayer of the petition is for/jadgMsoxtic &f-for judgment in ter due proceedings /xxíxaUU¿U)xji*jcx8ccix the gum .claimed.
The defendant answers admitting the insurance of said cor by the polioy sued upon, but denies that there was any fire c.s alleged, or that there was any damage done by fire; denies that the Act of the Legislature referred to has reference or relete3 to an insurance company of the ohsraoter of the defendant cop-pány; hence denies that it is indebted unto defendant in any sum whatever.
Finally .prays that plaintiff's petition be dismissed at his cost.
Mrs. Leonard Hochscein, wife of plaintiff, in her testimony in chief stated:
Q. Ttere you in oharge of the automobile belonging to Mr. Hoohstein on May 17th, 1920 abopt twelve o'cloojc noon?
A. Yes sir.
Q. Who was running the automobile?
A. I was.
0,. Did you try to start it?
A. Yes 3ir.
0. Ware you able to start it?
A. Hot o.t that time.
Q. What did you do?
A. X called for the mechanic who was usually around there and he csme to my assistance and when he attempted to start it by pranking it there uos an awful combustion, sounded like the cer 'tins going to pieces, and we saw flsms3 coming from the breather, which is the only pert from whioh flamas could come if th3 fire was in the crunkhead
Q. Did you see the fire coming out of the automobile? '
A. Yes sir.
Q. \V-:-3 there c-nybody else around there.
*444A. The méchenlo was Vfarren Lookett.
0. Vih.-.s did you do •■•bout the firo?
A. When I s;w the flume I called to him and he looked up ■. nd sold "shut the motor off .flick, which I aid". Vfe tried to rect_a-t it :r.d it would not ¡rove • t -ill, viotl. act turn over tt *-.11.
0. Did you examine the c.r then?
A. I hod the o rn.nk-0.a3e is’ken off -. nd- the bearings were burned?
Q. Did you see the orr ofter it vr 3 token to pieoe3?
A. Y23 sir.
Q. Wh-t did you see then as to damages?
A. All the pistons, rings end blocks, everything -.v-'S hurur-.l.
She further testifies that the Compon-.- .y 5 notified -*nd tn-.-t si hr. Singrsen told witness to have th* 0; 1- r..p ired . nd everything would be all right; further testified that the w-cunto p-id for the repair of the o-r trere the ¡.mounts claimed for s-ms in this suit.
On cross examination this witness does not in any wise waver la her testimony given in ohief.
The next witness is Vfarren Lockett.
0, On :Ieyl7th, 1300, were you in the garage of dr. Hoohstein?
A. Yes sir.
r'. Wo-rj ycv. c’.iled by m-.-s. Hoohstein?
A. Yes sir, she told rae to look and see wh”t vr1'.s the matter -with her nr.chinei
0. Wh.rt did you do?
A. I went to see what -.v:.s the matter with it, before th-t i.;-.chine Iv-d stopped so sts tried to or nk it by the self st'-rtel c..nd it -would not go so I cranked it end in cranking it there v..s an awful noise in the motor; I looked to see wn t ins trcuole ..-,s and X saw a little flams coming from the bre-. ther.
Q. Saw a fire coming out of the u.- chine?
A. Yes sir, so I tola her to close the motor off.
Q. What did j^ou do after she closed the motor off?
*445A. I knowed there was something.wrong then and when I had t taken the crenk co3e off X pulled out one of the pistons on the connecting rod and there was a dry skin of soot; you could wipe it off with your hand, hood
Q. Wes the/astas off at the time,
O., W® h d token it off.
Witness goes on to testify win t w?3 i:ne by him to the machine eubsequ'-nt to what he hod testified.
Witness testifies th=t he bed been repairing automobiles for five or six years; that he repaired this automobile r.fter the fire, that he had put in buehir.g3, be* rings, blooks, pistons end ring3, -r.d the old parts which they took* off could not be used, they were no good; also ths -.utomobile could not run.
This witness was asked by the Court:
tj. There is not doubt in your mind you s--.v fls-mOe coming cut from th..t plnoei
A. i.c sir, no. doubt.
Counsel then asked the questions
C. Could you 3wetr positively that the damage you sow r'suited from these fl..ats?
A. From the flame, yos sir.
He t'stifles that he had taken care of the o^rs of plaintiff for ths three years; ho is - colored msn;and the further orcss examination of thi3 witness was not in any wise materially different from his direct =xs.iinnticn.
Ur. Pique, an employee of the Revel Agency, testified that he'examined the automobile cf the plaintiff shortly after iky 17th, 1220; that after looking ft it, saw ths blooks were scratched and burned, he did not see the flame, but examined ths purt3 of the «.utomobile ?nd they oil showed signs of what you term a burn.
<?. They showed signs that they had met with fire?
A. Well, sure hr. Hochsrein said "X did'nt see the *446flame", she Bald "they Rad a fíame"; X saw the blooks and they looked burned to me, also the pistons,
Q. And there iras evldenoe of burning to your mind?
A, Yes sir,
Q. ilxs There was a charge made of 1358.00 for this workj do ypu oonsider thpt a reasonable charge?
A, Yes sir, I do.
On oross examination:
Q. Mr. Piquet,' in what sense do you use the word burned?
A.'Burned-It is pretty herd to say what sense you use it Objections in because it could be burned from fire, butyaíjijjeaííac were made so often here and it is useless to ask me that.
Q. Well Just tell.me in what sense the'word burned oen be understood?
A. A oar to be burned beyond usage is that the c?.r had been burned had to happen at the minute in a fevr-probably in about twenty stroks there could be a flare in the crank and it oould not be run very hard in that condition, a block soarred will not heat and those blooks were scarred. GJhe questions propounded to this witness on mross examination, which witness hays were more scientific than practical, and witness from experience stated that he was ojore practical a3 a ineohanic than soientifio. Further throughout hie entire testimony, we are satisfied from his evidence, taking it as a whole, that he was satisfied that this ogr had been burned as he had first described it.
As an example of witnesses knowledge on the question referred to, amongst other thing* asked was:
Q, If, in a case of this kind you were told that there was 'a fire, and you saw the blooks in the-condition in which you did and you believed the witnesses to be credible what would be your opinion?
After so** objection* to the question, overruled by the Judge, his answer is made:
A, tJpon ooming from people of th* class of ths*e people, raliabl* ptopla, my opinion wou3Ld be that the blocfca were *447burned by fire, that would be my decision if the Bitter was left for me to decide.
T. P. Marquis, a machinist, after stating that he-had been in business for thirty years testified:
Q. Have you had experience in regard, to heating of metal# or the degree Of heat that metals oan withstand?
A, I have had ooiieiderable experience. Yes sir.
And being ashed,' "Is it possible to heat a metal dry the oil and enough tcystop all flow of’it and allow the metal to oool off without any oil or water’and hate the metal not to «¡barí She witness answers: “It is possible."
On dross examination:
Hypothetical questions were propounded to this witness, and in our opinion have no bearing upon hi# prior testimony.
Mr. Piquet Was reoailed:
<4. It was testified by. Mr. Sohayer that the flairte that Was seen in this case was simply a backfire;from your experience in repairing automobile# and from your examination of this damage, will you testify whether ikisxlms there was any evidence of a backfire?
A. No, there was no evidence of a baokfire for the simple reason that a backfire would only burn the outside surfaoe, the paint from the carbureter, therefore it would take and soratoh or burn the the paint off, and unless the fire continued say fot a half hour it would b'e unable to reach the base of the motor.
Amongst other questions, the witness was asked:
Q. You did state that if a statement were made by oredible witnesses that yrat they saw a fire and upon your examination of the class they were, your opinion would be that the damage was caused by fire?
A. Absolutely, because ±h* I believe that there ie honor among human beings, and I always work to that end..
The testimony of Mrs. Leonard Hochsteln, recalled as a witness, in no ma,tter effects or Changes her testimony *448in chief
And so do X find she testimony of Icokstt, recalled, who reaffirmed in main the testimony given on his origin'1 examination.
Tlio first witness on beh-If of the defend nt ■■ Mr. Grevenberg, one of the local representativc-s of the defendant inoursneo company. He ’¿nr.,' nothing sf the fire itself, except he received a report there was firu, ve.s in the office at the time the report cue in; th:- f.re occurred on May l?th and he ext. inod the cvr on J,:n - ICth following. So that his knowledge of the f ota of thv cose his testimony does not prove anything rcr-. ri'nc the case.
The next .vitneas was c dr, ScV yer, ./he ---ft j s how many years he h?.d been in the business, Xift.cn or twenty years, and th»t he does all kinds of general r ire, manufacturing, and at the request of Mr. 3rsr-.,nb. rg :..-.da an examination cf the automobile in qu. colon; he c. w it either in the month if June or July foil icing the firs.
Q. V/r..s the -utomobile damaged by fir-?
A. Ho 'svidor.oe of fire.
Q. Wo a there any evidence of the met 1 h. vir:g run?
A, Do sir, the only evidence that w-s there would show there use a dust esused from no lubrication on the connecting rod betrings.
Q. V/.' s there t ny oortior. of this ■■ utomoblle ,vhi tever which showed there had beon ■■■ fire?
A. I hove s sen no evidence of my fire .hf-tover.Mow there might be an expl03ina-like :■■■ back firs, o-using an explosion, but it would be right out ,'nd bo nc re.
Q. You /¡oin the fire in she brscthfr, to which hr 3. .'C0..-s-ein has testified,might hove been Short.-, cut th t fire—
A. I wouldn't sty thrt — nothing is impooiiuls, ou: I huv never known it tc be.
Q. In your experience, you h.ve never seen : o.nditicn exist, fire in iho brestj-er pipe?
*449A. Only when the motor is burned up.
On oross examination the Court asked this question;
CJ, How do you explain that a fire was seen coming out of the maohine?
A. if there was an explosion it would flash up, and if you shut the motor down the fire would he down, it couldn't burn. And there was oil in the engine, even in the oránk case, and all the parts were lubricated, exoeptlng the connecting rods,.whioh were put in new— four I think. X asked the man to save the old'parts. If the oase came to court I oould baok up what I say. And I don't get paid by anybody whatsoever,.1 hire one hundred and twenty men, I don't have to.
Mr. W. M. Jurgens, testifies that he was in the automobile repair business and inspector for insurance 'companies, and he.s been so engaged in the repair business for twenty years and nine years.inspector for insurance companies. He further testifies that he examined the automobile of plaintiff in this case; this was about one month subsequent to the fire-and with-t out extending the witness's testimony more than is absolutely neoessary, for a decision in this case, he says;
Q. You found no evidenoe of fire, you say. What was the nature of the damage to the parts which you saw?
A. When I went to the oar to examine it, I found all the parts thoroughly olesned, the mechanic was overhauling the oar and I began to examine the hose and wire connections, whioh is the first thing which show evidenoe Of a flame, and that seemed to be in first class condition, outside of wear and tear. And he also mentioned to me about eylinders being scorched.
In other parts of this witness's testimony he states that the damage oourring to the automobile was not oaused by fire but was caused by laok of lubrication and he goes on to give his reasons fox this answer to this particular question.
On cross examination, being asked the nature of his business, he answered: "My business is inspector of insurance *450la «utoaoblle rapáis business and inspector .tai ¡(S3- isattranoe oompaniea; "and further on oros» examina— tioiv sit»M» testifies "1 investigate losses in this manner. I. *w&í'jí*t:U».te» on all damages, puoh as collisions, fires, BSSpWlUl' #**»**., and if the assured can agree to my figures, 5|&® immsetencre company direots the delivery of work to ray shop.
In answer to the question: You did find them soorohed? A,. Cylinders all soorohed and hearings all damaged, hut not by XiSf.
Q, And your oonolusion ip it was not by fire?
•A. Bp *jr oonolusion hut my experience in toa business.
An examination of this record proves that there was afire, witnessed by Mrs. Hoohstein and Warren lookett; im-msdiat* notioe of the fire was given to the defendant company, and about a month after the fire, having received the notioe.in question, defendant aompany sent their representative to examine the automobile in question. These tacx witter defendant nsesss/havs testified not from their knowledge of what occurred ths date pf the fire, but from their experience with 'losses snd repairs or other work to he done by the insurance oompony, and whilst affirmative evidenoe wa,s only contradicted by theories, which akia whilst displaying a great deal of knowledge and skill, (to whioh the testimony of Hr. Pique an expert, is contradictory,and affirmative to the- testimony give® by ths witnesses for plaintiff), yet does not disprove to 'my mind ; the. fact that the fire occurred on the day stated and under the ciroumstanoes sworn to by the two witnesses for plaintiff in this case.
? cannot under any circumstances, in a case of this oharaotar, aooapt expert testimony, no matter how intelligent these experts may be, as against the testimony of witnesses to facts, at the- time of the oocurrenoe. Particularly is thie the case when ths experts or other witnesses of the defendant company had not examined, for a month or more Piter the fire, the automobile in question.
Thp plaintiff has filed an answer to the appeal *451claiming damages allowed by Act 168 of 1908, same being fixed by the statute as against fire insurance cbnp'anie3 which do nbt pay their losses on a policy of insurance, end be bee prayed for twelve per cent damages together withthe sum of One Hundred Doliera as attorney's fees.
•I am not disposed to grant the damages prayed for under the lew cited, and X refer to the opinion'of the Supreme Court of this St^te, found in the 143 Le. Ann. at page 631, li/hiteside et al vs. Lafayette Fire Insurance Co., wherein quoting,the statute the Court goes on to say:
rt1ie find nothing in the statute to justify our limiting the imposition of the penalties tc casks where insurance companies willfully refuse to' pay what they owe. Vis doubt that the Legislature believed 'that insurance companies ever willfully or arbitrarily refuse to psy their losses; and vie are quite sure the statute was not intended to fix a price or penalty that an insurance obmpahy should pay for the privilege of with- ■ holding money due to aft assured until the end of an indefensible law Suit.
The plaintiffs have prayed, in ah3wer to the appeal, for damages for s frivolous appeal; but the ability and industry with which ihs appeal hs.3 been presented and prósscutéd convince us that the lee.rned counsel for the■appellant wsré very muoh in earnest, and that the appeal was not ts,ksn Aerely to delay payment of the judgment."
And sb sáy I in the present base.
For the reasons assigned, I respectfully dissent from the majority opinion in this dase.