Home Insurance Company v. Wiggins

147 So. 2d 157
CourtDistrict Court of Appeal of Florida
DecidedNovember 29, 1962
DocketD-274 and D-275
StatusPublished
Cited by8 cases

This text of 147 So. 2d 157 (Home Insurance Company v. Wiggins) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Home Insurance Company v. Wiggins, 147 So. 2d 157 (Fla. Ct. App. 1962).

Opinion

147 So.2d 157 (1962)

The HOME INSURANCE COMPANY, Appellant,
v.
H.E. WIGGINS, Doing Business As Wiggins Men & Boys' Shop, Appellee.
The TRAVELERS FIRE INSURANCE COMPANY, Appellant,
v.
H.E. WIGGINS, Doing Business As Wiggins Men & Boys' Shop, Appellee.

Nos. D-274 and D-275.

District Court of Appeal of Florida. First District.

November 29, 1962.
Rehearing Denied December 27, 1962.

*158 Beggs, Lane, Daniel, Middlebrooks & Gaines, Pensacola, for appellants.

James E. Hertz, of Fisher & Hepner, Pensacola, for appellee.

WIGGINTON, Judge.

This appeal is from a final judgment entered upon a jury's verdict awarding appellee the proceeds of two fire insurance policies covering a stock of goods, furniture and fixtures owned by appellee and located in a store operated by him. The action on the insurance policies was defended by appellants on the ground that the fire which destroyed appellee's property was wilfully kindled by appellee with intent to defraud appellants.

The sole point on appeal touching the merits of this case concerns a ruling by the trial judge which granted in part and denied in part appellant's objection to a portion of the testimony given by appellee's witness, Ralph Polise. The appeal presents no question with respect to the weight or sufficiency of the evidence to support the judgment on the crucial issues of liability or damages.

At the trial appellee called Polise as an expert witness on the nature and origin of fires. After stating his qualifications as an expert, the witness was asked whether he had sufficient knowledge of the conditions which existed in the area where the fire originated to express an opinion as to its cause. Appellant's objection to this question was overruled whereupon the witness answered: "Assuming the door was closed and the building, all the widows shut on the east side of the house and the windows already boarded up or bricked up on the front *159 of the building, if there was any event of spontaneous combustion would be very low, in my opinion." The witness then proceeded to elaborate on various conditions which would likely cause a fire to start by spontaneous combustion. The trial judge evidently construed this testimony as an expression of opinion by the witness that the fire in question could have or did originate by spontaneous combustion. After the witness had completed his testimony, the trial judge reconsidered his ruling on the admissibility of this part of the witness' testimony, and of his own motion stated to the jury that he had erroneously overruled appellant's motion to strike that part of the witness' testimony in which he expressed the opinion that the fire was caused by spontaneous combustion. The questioned testimony was then stricken and the jury was instructed to wholly disregard that part of the witness' statement which expressed such opinion.

Appellants contend that the trial court committed error in the first instance when over their objection he permitted the witness to express an opinion regarding the origin of the fire, which error was not cured by the court's later instructions to the jury to disregard such testimony. With this contention we cannot agree. The error, if any, was cured by the court's subsequent ruling and could not be said to have deprived appellant of a fair trial.

The witness Polise was also permitted over the objection of appellants to testify that a cardboard box placed on an energized electric hot plate would catch fire and commence to burn within a period of thirty seconds. Appellants contend that the admission of this testimony was erroneous for the reason that the witness had not demonstrated sufficient qualifications to express an expert opinion on this subject. It is well established in this state that the trial court has the initial responsibility of determining the qualifications and range of subjects on which an expert witness may be allowed to testify, and his determination will not be disturbed on appeal absent a clear showing of an abuse of discretion.[1] We find no demonstration by the record which indicates that the trial judge abused his discretion in determining that the witness was qualified to express the opinion to which objection was made. Even should it be considered that the admission of this testimony was erroneous, from the very nature of the testimony itself the error would be harmless and not sufficient justification for reversal of the judgment appealed. We consider the remaining point on appeal to be without substantial merit.

Reversible error not being made to appear, the judgment is affirmed.

CARROLL, DONALD K., C.J., concurs.

RAWLS, J., dissents.

RAWLS, Judge (dissenting).

As stated in the majority opinion, each of the appellants had issued a fire insurance policy to Wiggins covering certain contents of stock, furniture and fixtures in his place of business. A fire occurred in Wiggins' store resulting in considerable loss, the amount of same being stipulated between the parties. Wiggins made demand on the insurance companies for payment of his claim and upon said claim being denied, he instituted this suit. The insurance companies defended on the grounds that the fire was wilfully kindled by Wiggins with intent to defraud the insurers. This defense was predicated upon the theory that Wiggins piled a group of cardboard boxes on an electric hot plate located in the "upstairs" part of the store and intentionally turned on the electric switch to start the fire.

Wiggins' testimony, which was corroborated, as to his activities during the day of the fire revealed among other things that he *160 waxed and polished the floor of the store during the morning; he was absent from the store from approximately 1:15 to 4:30 in the afternoon; he was upstairs from approximately 4:30 until 5:00, the primary purpose being to close a door which had been opened for ventilation; he was outside the store from around 5:00 until 5:45 talking to a neighboring store operator; he went back into the store around 5:45 where he talked to his employee and her husband until 6:00 P.M., at which time he turned the lights off in the store and followed his employee and her husband out of the store; immediately after locking the store, he and one of his brother's employees drove a few blocks where the employee got out of the car, and he drove directly home; upon arriving home he received a telephone call to the effect that his store was on fire. Wiggins also testified that the upstairs of the store had sheet metal nailed over the windows and that the door was the only source of ventilation. The purpose of this testimony, linked with the testimony of the witness Polise, which is discussed later, was to negate the energizing of the hot plate by Wiggins

The insurance companies defended primarily upon the following evidence: that Wiggins voluntarily submitted to a polygraph examination two days after the fire and at the conclusion of same Wiggins admitted to the examiner that he had rigged a hot plate on a table, piled papers and boxes all around it, and just before leaving the store, flipped the switch to turn on the hot plate and cause the fire; that upon leaving the polygraph room, Wiggins repeated the same admission and discussed the details of the fire at length with the polygraph operator, his assistant, a captain and an inspector of the Pensacola Fire Department.

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147 So. 2d 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/home-insurance-company-v-wiggins-fladistctapp-1962.