
    LEON HOCHSTEIN versus AMERICAN AUTOMOBILE INSURANCE CO.
    NO. 8,240
    COURT OF APPEAL PARISH OF ORLEANS
    WILBIAM A. HEED, JUDGE:
    JUDGMENT REVERSED.
    June 19th, 1922.
    
      
    
   £7: WITJJAM A. BBSS» TODSS:

Plaintiff herein has recovered Judgment in the sum of $368.90 against defendant, Amerioan Automobile Insuranoe Company, unddt a fire clause in a oertain policy issued by the Company in plaintiff's favor, under date of May 13, 1920.

¡The petition alleges that on May 17, 1920, three days after the date of said polioy, plaintiff's automobile was damaged by fire, with the result that the blocks, pistons and rings, bushings and bearings were burned and completely ruined, the replacement of which cost the amount sued upon; that from no fault of p. titioner but purely from accidental causes, the damage was sustained; that notwithstanding amicable demand, defendant has refused to meet or recognize its liability under the policy, and therefore there should be Judgment for not only the amount of damages, but for twelve per cent additional damages upon the amount sued for, and also for reasonable attorney's fees.

Defendant admits the issuance of the policy and its existence at the date of the alleged fire, but denies that the damages if any, were due to any fii;e loss or other cause for which it could be liable under the terms of the polioy, and particularly denies that it is liable for damages or attorney's fees under Aot 168 of 1908.

¡There was Judgment rendered in the trial court only for the amount of actual damages to the automobile. Plaintiff has answered the appeal, to this oourt, and prays for all damages olaimed in the petition.

We find from the evidence that plaintiff's wife was driving the car on the morning of May 17, 1920, and that for some reason not shown by her testimony,pr that' of other witnesses, the maohine was not working satisfactorily. Por this reason she returned with the oar to plaintiff's garage, and not being able to again start the engine, she called to the colored mechanic then in or around the garage,

3he testifies that as soon as this man started to crank the oar, there was a dreadful oombustlon. sounding like the oar was going to pieces, and that when she saw flames coming from the "breather" she shouted to the mechanic, who told her to "shut the motor off guiok," which she did, and that thereafter they-were unable to re-start the car or to get the engine to turn over at all. Both of these witnesses testify that at the moment of the accident the hood of the car was raised. This fact convinces us that the fire, or what the mechanic terms as "a little flame coming out of the breather," was not confined or shut in against the mechanism of the car.

Plaintiff's, wife and the mechanic were the sole witnesses to the accident, and both agree that the combustion, if any, was but momentary, and explosive in its nature. Their evidence is corroborative that there was no visual evidence of a fire from the outward appearance of the-engine, radiator, or other parts, but that after the accident, when the crank case and blocks were removed or opened, the piston rods, rings, bushings and bearings, were found to be burned. They each agree when asked to describe the eatent or nature of damage to these parts, that they were all burned because they were covered with a black or brown soot, but that none of these parts were in any way melted. Mrs. Hoohstein says: "They had a sort of varped swelling," but the mechanic denies that they were warped, but only sticky, and full of soot. This man further testifies that he had been attending to the ear for about three years, and that about two months before the fire he had overhauled the car and put it in good condition, especially in respect to the several parts which he testified were damaged by the fire. He undertakes to say that as a result from the fire, these parts were worn below the normal standard (or size) of what they should have been, and did not fit anywhere, having about an eighth of an inch ¿.-lay in them after being burned. However, Just before giving- this kind of testimony, and after swearing that none of the parts were warped, he undertakes the additional statement that tire pistons were so tight in the blocks that he had to use all of his force to remove them . When cross-examined about the v/orn condition of these parts, he admitted that they could have beeh so by wear and tear, though he insisted that they were burned.

Mr. ff.D, pique v/as another witness for the plaintiff, the chief mechanic for the Cadillac Asrency in this City, the injured car being a Cadillac. This witness testified that at the request of plaintiff'«s wife he examined the car after the explosion, but only saw the blocks and pistons, which seemed scarred and burned beyond usage, which to him was evidence of burning, though he did not see the "blaae" himself, but had only heard of one through Mrs. Hochstein. On cross-examination, he testified in part, as follows:

Mr. X i que , in what sense do you use the word "burned'1?
A. Burned — it is pretty hard to say what sense you use it in, because it could be burned from fire, but other objections were made here and it is useless to ask me that.
Q. 7/ell, just tell me in what sense the word burned can be understood.
A. A car, 10 bo'burned beyond usage, as that car had been burned, had to happen at the minuto; in a fev;-probably about twenty strokes. There could have been a flare in the cranked car and burned, from the condi tions ,--because it could not have been run very long in that condition; a block scarred will not heat, and those blocks were scarred.
Q. The word burned is used in a dual sense; one burned from fire, and one burned from friction?
A. Yes, sir, it is.
Q. This evidence of burning, which you saw, was evidence of burning in vhat sense, from fire or from friction?
A. Well now, if the ease was put to me, as it was, to take a look at the blocks and say how they were burned, it wouia be impossible. There is no mechanic or engineer in this city or in the united states who could ever tell you, unless.they saw the flames, or what it originated from.
Q. How, what happens when you apply heat of high intensity to metal such as is used in the construction of those portions of an automobile?
A. A fire could not melt anything except — on an inside of a motor like that, couldn't melt anything, with the exception of the babbit inside of the bearing on the crankshaft.
Q. Why?
A. It is not that intense.
<¡, What is the first change which would occur as the result of the application of heat to metal such as cast iron or steel, what change would it undergo?
A. It would show signs of burning, the same as practically any fire of that kind would.
Q. It would not consume the metal, as wood would be consumed?
A. Ho, sir, ueoause it is not intense enough.
Q. If it vías sufficiently intense what would occur, would the metal actually be consumed, such as a piece of wood would be, or would the shape of the metal be altered because of the fact that the metal had begun to run? Would the metal be consumed, or would it run, granting there was sufficient heat?
A. If it was intense enough anything will run, no matter how great it is? If you get enough heat in it, but you can't get it inside of the motor.
Q. In this particular instance there was not a heat of sufficient intensity to cause the running of the metal?
A. Ho.
Q. How, as I understand your testimony, there was nothing in the appearance of these alleged damaged parts which would enable any engineer on earth to state from that whether or not that damage resulted frim fire or from friction; is that it?
A. That is correct.’1

Ibis witness being reoalled by plaintiff, on rebuttal, again testified under cross-examination, as folldws:

"Q. As X understood the general purport of your testimony at the last hearing you were unable to state with absolute certainty whether or not this damage was caused by an actual flame or fire?
A. Absolutely. Hobody living can tell you, either?

She testimony of this witness on behalf of plaintiff has been carefully reviewed by us for the reason that he appears to be a mechanic with expert knowledge oonoerning the construction and mechanism of automobiles, especially the kind of automobile involved in this suit, and we are impressed particularly with that part or his testimony in which he honestly declares that neither himself nor any other mechanic oould advise the Court, unless having seen the explosion, or flames, what the accident originated from. He not having seen the aooident, has not undertaken to say what was its cause, but in this case there are other expert witnesses whose testimony has been offered by defendant, who have testified under oath that in their opinion the condition of the parts claimed to have been injured distinctly shows that said condition oould not have been caused by a fire, but that the parts show scarring, due to inperfect lubrication, and are in no manner "sealed" as they would have to be had they been subjected to a fire of any duration or intensity. The rebuttal of the testimony of the witness Marquis, oalled by plaintiff, is in our opinion largely hypothetical, and has not in any way assisted us, for the reason that he does not appear to have examined any of the damaged parts of the machine.

We pass now to the further consideration of the testimony given by witnesses for the defense.

It is true that none of these witnesses examined the parts until a month or two after the alleged fire, but two of them are experts, thoroughly qualified to pa33 upon the cause of the alleged damage, as evidenced by .the results seen at the time of their examination.

Mr. Grevenberg, the local representative of the defendant Company, but not an expert, states that he called into consultation with him Mr. Sohayer and Mr. Jurgens, the other witnesses for the defense, who are experts. From this point in the reoord, the testimony for defendant is oonfined to what the experts found upon the examination authorized by Mr. Grevenberg.

We find that the testimony of these experts is consistent on the point that if there were any flame which followed the cranking of the machine by the colored mechanic, that it oould not have been of any duration or intensity sufficient to warp or melt, or materially injure the parts to the extent alleged in this suit, and that had such intense conflagration occurred, the aluminum motor base of the engine would have melted long before the pistons or cylinder block, and before these could have even become red hot, and that such intensity of heat would have resulted in complete destruction of the motor base made of aluminum, or softer metals constituting the piston rods or other parts in the cylinder blocks.

Each of these witnesses corroborates the other's testimony to the effect that there was no evidence of damage to these parts beyond scarring, and that it was evident that the scarring was caused by improper lubrication, and that if there were any warping on the pistons, causing loss of motion, that such warping was due to age of the parts. In accounting-, on a hypothetical basis for any explosion as claimed by plaintiff, and the colored mechanic, the witness Sohayer swears that in his opinion there might have been a back fire, but that this back fire would have been spontaneous, and of the shortest duration, causing no damage, or at least, no such damage as plaintiff's evidence would indicate.

IhiB same witness says that in all of his experience, over fifteen or twenty years, that he has never seen or heard of a fire in the "breather pipe" such as was claimed here, unless it were attended with complete consumption of the motor itself, and that then, under such conditions, the motor would be all sealed up. He denies particularly that the blocks said to have been burned were warped, and says further that there was nothing the matter with the blocks, which could have been U8ed, because the damage was not caused by any fire on them, though he admits that the machine needed repairing. Sohayer further states that Rockett, the colored mechanic, showed him the parts stripped from the engine, and that he, Schayer, put his hand inside of the motor and around the pistons, and examined all the bearings, and that he called Rockett's attention at the time, and showed him that there was oil in all the parts, and that there was no sealing.

He further swears that scaling must follow very intense heat, and that it is easily observable, even two months after being subjected to such heat. He further states that he took tlie piston itself, and put it in the cylinder block, and that there was nothing the matter with the piston outside of its being a little worn. Witness concluded his testimony with the statement that he asked Rockett to save the old parts, and that if these parts had been brought into Court ho oould have "backed up" what he said about them.

At this point, it is to be noted that tlie witness, Rockett, when asked about the parts on first hearing of the case in the trial court, said that they viere in the garage, and that he would be glad to bring them to Court if it was all right with Mrs. Eoekstein. These parts were never offered in evidence by the plaintiff, and when Rockett was again requested to account for them on the second hearing of the case, he simply stated that he had not brought them to Court, but that they were in the garage for inspection.

Mr. W. M. Jurgens, an inspector for the Insurance Company, arid also in the automobile repair business for over tv.enty years, was the other expert witness offered by defendant, who corroborated in almost every detail what was stated by Mr. Schayer, stating that he found no traces of fire v/hatsoever. It is true that he also examined the parts some time aftor the alleged conflagration, and that when ho first saw the car the mechanic was overhauling it, and that he, witness, began to examine the hose and wire connections, which, as he said, is the first thing that shows evidence of a flame, and that these parts seemed to be in first class condition, outside of v.ear and tear; that the engine shoved lack of lubrication. Ee further states that the babbit in the motor is the softest material used, and that to melt same would require 700 degrees of heat; that the babbit was not melted, and that by the time fire v/ould reach the babbit bearings, it vould destroy the aluminum cranking case on the outside, he having found the aluminum cranking case in this matter in first class condition, he was asked the question tfcut if a temperature of 700 and soné odd degrees rere obtained, vould it not burn the whole car, to v i.ich he replied that the whole car, the hoed, the whole front, and the radiator* would have been totally destroyed by the timo ube aluminum cranking case shored any developments of fire.

Ite further states that lack of lubrication would have caused the condition of the ¿istons and bearings, as he found them, that is "scarred," and that the cylinders vere all scarred, and the bearings all damaged, but not by fire.

Ke further says that the minute he locked at the cast iron, or cylinder walls, he was convinced that the car had been ojjerated for many an hour with lack of lubrication,and that even if the automobile had been run for several hours before coming to the garage, that no heat could develop in the cranking ease, suoh heat haying to develop from the outside by tire»

He furthei states that one of the babbited oqnneoting rods< was damaged, but only from lack of luhrioation» He gives as positive, expert testimony, that if an automobile is being cranked up, and a fire is on the inside of it, and it oontinues for a minute'or two, no damage oan be done because the flame goes out, and there can be no damage to any part of the motor, the flame being confined between-the carbureter and the hood.

Shis ease is one involving questions of fact, conclusions from which by the court a qua, should be given great consideration by the Appellate Court. But we have been much impressed with the fact that the preponderance of evidence against the probability of a fire, for which defendant should be held liable, is largely in favor of the Insurance Company in' this case»

We think that the weight of expert testimony is clearly in favor of defendant, and it is a-reasonable presumption of law that the failure of the plaintiff to produce the alleged damaged parts at the trial in the lower court, especially when called for, that the presumption must be that this evidence would have been unfavorable to the plaintiff. Ror these reasons, we are of' the opinion that there should be judgment in favor of defendant

It is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby is reversed, and it is now ordereu. that there be judgment for defendant, the American Automobile Insurance Co,, dismissing the petition of león Hoehstein, plaintiff herein, at his coot in both courts.

JUDGHEtff EEVJBHSED AS PRAIHSIM1' S C03S IH BOSH OOURSS.

June 19th, 1922*

NO. 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 Attorney'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.
A. 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?
A. 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 flame", 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 burned 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 in 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?
A. 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 la «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 claiming 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.  