Just an Error of Judgment

Elliott Flower in Putnams’ and the Reader Magazine September 1 1908

Just an Error of Judgment

Elliott Flower in Putnams’ and the Reader Magazine September 1 1908

Just an Error of Judgment

How an Impulsive Act on the Part of a Zealous Insurance Adjuster Led a Jury to Record a Decision Against the Company who Contested Payment of a Policy on the Plea that Arson had Been Committed.

Elliott Flower in Putnams’ and the Reader Magazine

A SOLITARY watchman stood in the doorway of the burned store and looked anxiously up and down the street ; he was disgusted and hungry.

“Wonder how long I got to stay here,” he grumbled. “He was goin' to have a man to relieve me by six o'clock, an' nobody’s come yet.”

Several people stopped and looked curiously at the wreck of the store, and then went on. Presently a tall, gaunt man, rather slow in his movements, approached with a leisurely air.

“Where’s Watson?” he asked, after a casual, but sharp, glance at the burned store.

“Search me,” growled the watchman. “What’s the matter?” asked the stranger. “You don’t seem to be feeling well.” “Hungry,” said the watchman.

The stranger seemed to find something of interest in this.

“There’s a restaurant across the street,” he suggested.

“Ain’t I had my eye on it ever since daylight?” retorted the watchman. “My time was up at six o’clock, but nobody’s come. I can’t leave.”

“I’ll stay here until you come back,” said the stranger.

The watchman was tempted. If people broke faith with him, why should he he so particular? Then he sighed.

“Broke,” he said.

The stranger fished a dollar from his pocket and tendered it.

“I’ve got to stay here awhile, anyhow,” he explained.

The watchman hesitated.

“Pm sworn in as special police,” he ar-

gued to himself, “but that’s no reason why 1 got to lose my breakfast.”

Then he took the dollar and crossed the street.

The stranger watched him disappear in the restaurant, and then he entered the burned building. He surveyed the interior with the comprehensive and critical eye of one accustomed to such scenes, and finally his interest seemed to centre on a particular spot.

“That’s where it started,” he muttered.

A moment later he was on his knees investigating some charred rubbish.

“Rags under a counter,” he commented. “The counter would hide the blaze until it was well started and then carry it to the shelves and goods. There were goods on the counter, too." ,

The counter was badly charred, but not destroyed, so it was easy to see from the blackened remnants that various things had been on top of it. The stranger investigated everything here, even to the point of smelling it. Then he went at what was left of the rags again, and finally put a few in his pocket.

“Coal oil,” he said. “Rags saturated with coal oil. I can’t be sure of the counter and the things on top of it, hut there was probably coal oil there, too. lie meant to see that it got a good start.”

He went hack to the door and waited until the watchman returned. A moment later the watchman was relieved, and shortly afterward Abel Watson, the owner of the store, arrived with his son and a lawyer.

“I am Gifford Oakes, insurance adjuster,” said the stranger by way of introducing himself.

“My lawyer, Mr. Halling, and my son,

Joseph," returned Watson, introducing his companions. “I suppose we might as well take up the question of loss at once.”

The presence of the lawyer did not impress Oakes favorably. Except in complicated cases, or where there is likely to be a dispute, a lawyer is not deemed necessary to the adjustment of insurance, and it looked as if Watson anticipated trouble.

“I have seen something of the premises,” said Oakes significantly, “but I am ready to go over the ground with you.’

He watched Watson narrowly as he said this, but the latter hardly seemed to notice the remark.

A regular policeman had taken the place of the special watchman, and he followed them into the building. Oakes went directly to the charred counter and called attention to the charred rags.

“This interested me particularly,” he said.

“Why?” asked Watson imperturbably. He certainly had magnificent nerve, but there was an anxious, frightened look in his son's eyes.

“Because,” Oakes answered slowly and deliberately, “the fire started in this pile of rags.”

“Spontaneous combustion possibly,” suggested Watson.

“And the rags had been saturated with coal oil,” added Oakes.

“I advise you to say nothing,” put in the lawyer. “He’s trying to trick you. If he thinks there is anything wrong with this fire, we'll let him show it in court.”

“Why should I be silent?” retorted Watson. “That coal oil idea is absurd. There was none in the place.”

“There will be time enough to talk,” argued the lawyer, “if they dispute our proof of loss when we file it. But I don’t think they’ll be foolish enough to fight.”

“1 don't think you’ll be foolish enough to swear to any proof of loss,” asserted Oakes. “Arson is a pretty serious matter.”

This shot seemed to hit the elder Watson as well as the younger, for he hesitated a moment before replying. Still, such an accusation would disturb even an innocent man.

“If you have decided that it is arson,” said Watson at last, “there is no use discussing the matter further here.”

“None at all,” Oakes conceded promptly,

“but I shall want to bring another party here before anything is disturbed.”

“The policeman will see that no one enters before you return,” said Watson. “The police have been in charge since the fire. But,” he added thoughtfully, “there’s one thing that puzzles me.”


“The presence of those rags. They had no business to be there, and I can’t imagine how they got there.”

“It impressed me,” said Oakes, “as being rather a strange place for rags.”

"It is,” admitted Watson; “I can’t understand it at all. I shall try to find out about that myself. It may be incendiarism, although I had not thought of that before. I can't think of anyone who would wish to injure me.” -

“And this fire was started on the inside of a locked store,” remarked Oakes. “That’s what puzzles me.”

“And the owner had recently increased his insurance considerably.”

“Your business,” commented Watson, without any show of anger, “doubtless has a tendency to make you suspicious. I think you will look at the matter differently later.”

Oakes decided that Watson was a man of resourcefulness and exceptional selfcontrol. He had made a slip in not expressing surprise at the presence of the rags in the first place, but he had come back to it cleverly and had made his point. But Oakes had no doubt in his own mind that it was a case of arson and that Watson never would press his claim for the insurance. In view of the discovery of the rags and the traces of coal oil, the risk was too great. Nevertheless, Oakes was not a man to take.chances. He went back to the store with a disinterested witness, and made it clear to the latter that there had been rags saturated with coal oil under the counter. He also put such evidence of arson as he had in the way of the proper authorities to start a criminal prosecution. “That will hold his attention for a while,” he mused. Besides, it is the policy of fire insurance companies to give all possible assistance in the prosecution of arson charges.

To Decider, his superior, he made a report of some length, predicting that there would be no serious effort to collect the insurance.

“Even if the claim is pressed,” he said,

“we shall have no difficulty in fighting it successfully. All the circumstances are suspicious. Watson has been having some financial troubles, and he recently increased his insurance. At the time of the fire he was carrying twenty per cent, more than he ever had deemed it necessary to carry before. With this insurance, he only needed the fire to get him out of his trouble. He brought his lawyer with him, apparently expecting a controversy. There were rags and coal oil where the fire started. I think I have made it clear to him that he has no chance to get anything.”

Nevertheless, from a strictly financial point of view, Oakes had done a little too much. Watson, in spite of his bold front, was prepared to abandon his claim, but the arson charge made it impossible to do this safely: it would be almost a confession of guilt, and the police and fire departments were investigating.

“If you can’t collect the insurance,” his lawyer told him, “you might as well prepare for jail. If you can collect it, you will knock the bottom out of the arson case. You’ve simply got to go ahead now.”

There could be no cpicstion as to the soundness of this advice. More than money depended upon collecting the insurance ; so Watson filed his proof of loss.

“Nerve!” commented Oakes. “He certainly has magnificent nerve !”

“We’d better see what we can do to strengthen our case,” suggested Deckler. “I concede that the evidence vcm already have is pretty strong, but it would help matters if we could show positively that Watson or his son or some employe was in the store after it was supposed to lie closed for the night.”

“That’s what the police are trying to prove,” said Oakes.

“And they haven’t succeeded,” added Deckler.

Which was true. There was the evidence of the coal oil and the rags, but no one could be found who had seen any one enter or leave the place after it was closed for the night. Nor could anything of value be learned from either Watson or his son. The latter seemed anxious and worried when he was questioned, but he stuck rigidly to the assertion that he knew nothing of any rags or coal oil, and he would say nothing beyond that. The elder Watson was apparently the personification of

frankness. Never before had he carried as much insurance as his stock warranted, and the very fact that he was in a tight place financially made it important that he should run no risk. It was necessary to increase his insurance in order to protect his creditors in case of fire, and he had done so. The explanation was reasonable. And Watson began suit.

Strangely enough, as the time for the trial approached he became suddenly more aggressive and confident. This, under the circumstances, was bewildering. He had begun with a sort of dogged defiance—like a man who is driven into a corner and has to fight. His lawyer had gone so far as to intimate that a compromise would be acceptable. In fact, it was evident to Oakes and Deckler that the case had reached a point where the amount of insurance paid was a minor consideration. Watson and his lawyer were not fighting for insurance money, but merely for the moral effect on the arson case. Any payment whatever would be a concession by the insurance company that the fire was an honest one.

This unquestionably was their position at first, but there was a decided change later. Watson lost his worried look and became smilingly confident. His lawyer was almost boastful. The latter served formal notice on the insurance company that all compromise propositions were withdrawn. As his overtures had been in the nature of hints rather than formal propositions, this action was unnecessary; but he explained that he wished to remove the possibility of any misunderstanding. The police had made no progress and were awaiting the outcome of the civil suit. That ought to bring out evidence that could be used in a criminal prosecution later.

“The course these people are pursuing is rather mystifying,” Deckler told Oakes. “I can’t sec anything in it but a bluff, but all reports indicate that they arc making the bluff an unusually good one. Even young Watson has become cheerful and bold, and we once thought we had reason to believe that he would break down and confess.”

“Rut we have the evidence," argued Oakes. “Of course it will be a jury trial, and juries are usually prejudiced against corporations, but they can’t get away from* the coal oil and rags.”

“And we’ll give them a little surprise,”

added Deckler, “just to discourage others

who may be tempted to put us to the trouble and expense of calling a bluff. We’ll make a little sensation for the reporters by having Watson and his son arrested in court as soon as the verdict is read. The police have delayed the arrest in the hope of showing a direct connection between them and the saturated rags, but it won’t be safe to wait a minute after the verdict in the civil case."

“If it is for us,” suggested Oakes.

“How can it be anything else?’’ demanded Deckler.

“Give it up,” answered Oakes.

They were even more sure of their ground when Watson’s lawyer made an unexpected and final effort to settle the matter out of court. That certainly was in line with the idea that they were bluffing, although the lawyer’s demand was for the full insured value of the goods destroyed.

“To try the case,’’ he said, “will only add to your expense and ours. We have no doubt of the result, but we do not wish to add unnecessarily to the expense.”

It was brave talk, but Deckler had no doubt that an offer of even a trifling sum in settlement would be promptly accepted. So he made no offer.

“Our legal department,” he replied, “encourages us to believe that we have practically no chance to lose. Before we would consider the payment of even a nickel we should like to have the evidence of arson explained away.”

“That is precisely what we shall do,” said the lawyer calmly.

“How?” demanded Deckler.

“It does not seem to us wise to uncover our case before we go into court,” replied the lawyer.

‘T suppose not,” retorted Deckler sarcastically. “You merely want me to accept your unsupported statement that there were no rags or coal oil there.”

“On the contrary, they were there, and we expect to show how they came to be there. I merely thought I would give you a chance to settle first.”

“Did you think we’d do it?” asked Deckler.

“No,” answered the lawyer, “I didn’t think you'd have sense enough, but Watson insisted. The expense of a trial will be considerable.”

“Well, we go to trial,” announced Deckler shortly.

This the lawyer promptly reported to Watson.

“There wasn't more than one chance in a million that I could do anything,” he explained, “but it was worth trying for that chance. We don’t want to go into court if we can get the money without doing so. I think we can win, but the risk is considerable. Of course, I couldn’t uncover our case or they might find a way to checkmate us. It had to be a bluff, but there were two ways that we might gain something: If I secured a settlement, no matter how small, it would kill the arson case ; if he considered it a pure bluff, he would consider it evidence of the weakness of our case, and this might lure the company into carelessness in presenting theirs. Success sometimes hinges on trifles.”

Meanwhile Deckler was wondering whether the lawyer was a fool or an unusually smart man, whether he really expected a compromise or had made his proposition with some ulterior and undiscovered purpose. He was far from being one of the stars of his profession—in fact, this was probably the biggest case he ever had handled. But Deckler only knew that he had made a most surprising move, and that he had seemed to be confident and somewhat amused when he went out. Indeed, he had said something about the satisfaction of putting the joke on the company by making an offer that it would regret it had not accepted.

All in all, it was a puzzle. The most searching investigation failed to uncover any evidence that would help Watson, and yet Watson was apparently cheerful when lie appeared in court for the trial of the case. He had been closely watched, but there had been nothing to indicate that he even contemplated running away.

“And in his position,” commented Oakes, “I think I’d skip if I got a real good chance.”

“Perhaps he thinks he will have time enough for that after the civil case is tried,” said Deckler, “but I rather think we’ll fool him.”

Yet they still lacked the evidence that would directly connect Watson or any of his employes with the burning of the store. He had the motive, and the store had been deliberately burned. There was no one else who could have any possible reason for setting the place on fire. Even Watson

declared that, so far as he knew, he had no enemy who would do it. All the circumstantial evidence was brought out clearly and forcefully—the increased insurance, the financial complications that threatened disaster, the coal oil and the charred rags. To the surprise of the insurance people, almost no effort was made to minimize the importance of these facts by cross-examination. Watson’s lawyer, in presenting his case, was content to rest upon the mere statement that there had been a fire, that the loss was almost total, that the goods scheduled were actually on the premises, and that the cause of the fire was unknown so far as his client was concerned. Watson himself conceded frankly that the insurance money would relieve him of a very great embarrassment and that the fire was really a fortunate thing for him. His frankness with respect to this made a most favorable impression and gave more force to his positive denial that he knew anything about the rags and coal oil.

“But they were found there after the fire, were they not?” he was asked on crossexamination.

“Yes, sir.”

“You personally know this to be a fact?”

“I saw the burned rags myself,” he replied. “I can swear to that. As for the coal oil, I am not familiar with the various inflammable oils, but there were traces of something of that nature. It may have been kerosene or turpentine or gasoline for all that I know, but others present called it coal oil, and I have no doubt they were right.”

“You knew nothing of this until after the fire?”

“Nothing at all. We kept no inflammable oils on the premises, and we had no such pile of rags.”

His son testified to the same effect, and so did other employes. The store had been locked when they left for the night, and it was still locked when the firemen arrived. In effect, it was merely Watson’s denial as opposed to the positive evidence df the presence of the rags and the oil at the point where the fire started. And Watson naturally would deny any knowledge of the origin of such a fire. The insurance people were confident that no jury would give insurance in the face of this positive evidence that the place was set on fire by someone who had a key ata time when the fire

would be advantageous to the'owner. They made this as clear as possible and rested their case.

Then, in rebuttal, Watson’s lawyer called Daniel Devine. Oakes did not recognize the name, but he recognized the man, and it recalled an incident that he had almost forgotten. Devine was the special policeman who was on duty when lie arrived to investigate the fire. After bringing out the fact that the policeman had been detailed to watch the burned store, the lawyer asked : “Did you leave your post at all before you were relieved?”

“Yes, sir,” answered Devine.

“How did you come to leave?”

“This man,” indicating Oakes, “gave me a dollar to get something to eat when he came there in the morning.”

“Got you out of the way, did he?”

“Well, I didn’t think of it that way then. I hadn't been relieved, I was hungry, and he said he would keep watch while I was gone.”

“Did you see what he did?”

“I saw him go into the store.”


“Yes, sir.”

“How long did he stay?”

“Fifteen or twenty minutes. I was in a restaurant across the street, but I could see the doorway.”

“He was there long enough to dump some charred rags under the counter and sprinkle a little coal oil about, wasn’t he?” “Yes, sir.”

“That’s all,” said the lawyer triumphantly.

Watson looked over at Oakes and laughed. Oakes gave Dcckler an apologetic glance.

“It was a fool thing to do,” whispered Oakes, “but the man himself suggested that he was hungry, and it looked like á good chance for a little quiet investigation. I must have been crazy.”

“I think so,” returned Dcckler, and Oakes was too humiliated bv his error of judgment to resent it. “But,” added Dcckler, “no man is infallible.”

“Tt was done on impulse,” explained Oakes.

“It has killed this case,” said Decider. “The average juror is always suspicious of a corporation.”

The jury were out less than fifteen minutes. They were of the opinion that an in-

surance company is always looking for the best of it, regardless of means employed, and that an adjuster would not hesitate to resort to trickery in order to improve his record by saving his company money.

“And now,” said Deckler, rather bitterly, when the verdict had been read, “will you kindly slip out into ;he corridor and tell the deputy out there that you made a consummate ass of yourself and we don't want the warrant served on Watson? Then,” added Deckler generously, “we will forget about

this case so far as our personal intercourse is concerned.”

Oakes gave Deckler a grateful glance. He would not forget it, but he would be glad not to have it mentioned.

Watson and his lawyer passed while Oakes was explaining to the deputy sheriff. Watson laughed again, and the lawyer suggested that the company ought to have compromised the case when it had a chance to do so.

Oakes did not trust himself to speak.