Warner v. Transamerica Ins. Co., s. 83-1974

Citation739 F.2d 1347
Decision Date25 July 1984
Docket Number83-2202 and 83-2054,Nos. 83-1974,s. 83-1974
Parties16 Fed. R. Evid. Serv. 1338 Jerry R. WARNER, d/b/a Sportsman's Corner, Appellee, v. TRANSAMERICA INSURANCE COMPANY, Appellant. Jerry R. WARNER, d/b/a Sportsman's Corner, Appellee, v. TRANSAMERICA INSURANCE COMPANY, Appellant. Jerry R. WARNER, d/b/a Sportsman's Corner, Appellant, v. TRANSAMERICA INSURANCE COMPANY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

James W. Newberry, Schroff, Glass & Newberry, P.C., Springfield, Mo., for appellee.

Russell F. Watters, Brown, James & Rabbitt, P.C., St. Louis, Mo., for appellant.

Before BRIGHT, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

Jerry R. Warner's business burned and he brought suit to collect the proceeds of an insurance policy issued by Transamerica Insurance Company. Transamerica denied coverage alleging that Warner had set the fire, and after trial a jury returned a verdict in favor of Warner. The district court 1 denied Transamerica's motions for a new trial and for relief from judgment and entered judgment on the verdict. Transamerica appeals from both rulings contending that the district court erred in excluding certain evidence and that the court denied it a fair trial by improperly commenting on evidence and questioning witnesses. Finally, Transamerica seeks a new trial on the basis of newly discovered evidence and juror misconduct. We reject appellant's contentions and affirm.

Jerry Warner operated a business called Sportsman's Corner in St. Roberts, Missouri in which he sold sporting goods and liquor. The business burned in the early morning hours of January 25, 1982. Warner submitted proof of loss of $266,200.00 for inventory, contents and furnishings but Transamerica denied the claim based on fraud.

At trial, Transamerica submitted undisputed evidence that arson was the cause of the fire. 2 Warner denied any involvement, however, and thus the main issue at trial was whether or not Warner participated in the arson.

Warner testified that he had been at his business on the day of the fire and noticed some pistols and approximately twenty cases of beer missing. However, he did not relate this information to the Fire Marshal who investigated the fire, although he did report the alleged break-in to the police three days after the fire.

Transamerica showed that Warner had increased the insurance coverage on Sportsman's Corner from $154,000.00 to $194,000.00 approximately two to three months prior to the fire. 3 However, Transamerica's agent admitted that he strongly urged Warner to increase his coverage in view of the increased size of his inventory. Transamerica also attempted to show that Warner had a motive for arson because falling gross sales, rising inventory reports, and a previous attempt to sell the business indicated that the business was in financial trouble. Warner showed, however, that even though sales were down for 1981, net income was up and all loans were current. It also appears that Warner had excellent credit with the two banks that were financing him.

Warner produced evidence that pointed to others with possible motives for committing arson. Specifically, he produced proof that he had experienced prior burglaries at Sportsman's, that he was enemies with both his wife's former husband and former boyfriend, that he had experienced a prior tire-slashing incident, and that a boat and motor had been stolen in the past.

After the jury returned its verdict, the district court entered judgment in favor of Warner in the amount of $281,768.36. Transamerica's motion for a new trial was denied. The court stated that Transamerica had wholly failed to prove that Warner had either the motive or opportunity for starting the fire and that the claimed errors in the proceedings did not justify a new trial. Transamerica then filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). The district court also denied this motion.

Transamerica's first point of error concerns the admissibility of evidence of a prior house fire which occurred at Warner's residence. The district court sustained Warner's motion in limine to preclude Transamerica from mentioning that Warner's house had burned fifteen days before his business burned. Transamerica contends that the house fire was relevant because some of Warner's business loans were secured in part by his residence, the evidence that Warner's business was in financial trouble, both fires were initially claimed to be caused by furnace malfunction, and because Warner had recently increased the insurance coverage on his business. Transamerica asserts that the evidence was thus admissible under FRE 404(b) 4 as probative of motive, intent, opportunity, or absence of mistake or accident.

The district court ruled that the evidence's slight probative value was "far outweighed by the possible prejudicial effect of the testimony." The court based this ruling primarily on the fact that there was no evidence to suggest that the prior fire was of incendiary origin, much less that Warner had anything to do with starting it. The court found that since Warner had not submitted a proof of loss for the house fire by the time of the business fire, no scheme of or familiarity with making fire insurance recoveries could have been indicated.

We may only reverse a trial court's determination of the admissibility of evidence where there has been a clear abuse of discretion. See Austin v. Loftsgaarden, 675 F.2d 168, 180 (8th Cir.1982); Hammann v. Hartford Accident & Indemnity Co., 620 F.2d 588, 589 (6th Cir.1980). No abuse of discretion has been shown here. In the only two cases we have found to be directly on point, evidence of a prior fire was not deemed to be relevant unless it was proved that the insured actually participated in the prior arson (or at least a showing that the fire was of incendiary origin) or that the evidence was probative of the insured's familiarity with insurance claims and recovery. See Garcia v. Aetna Casualty & Surety Co., 657 F.2d 652, 655 (5th Cir.1981); Smith v. State Farm Fire & Casualty Co., 633 F.2d 401, 402-04 (5th Cir.1980). See generally Annot., 64 ALR Fed. 648 (1983). 5 As the district court found, Transamerica has not shown any of these conditions here. It appears that the district court considered the relevant factors and carefully balanced the probative value of the evidence with its potential for prejudice, which was substantial. The district court was well within its discretion in excluding the evidence of the prior fire. 6

Transamerica next contends that the trial court's conduct, remarks, and questions were so biased that it did not receive a fair trial. Warner, on the other hand, asserts that the district court's questions and comments were merely an attempt to clarify evidence and that it is the trial court's right and duty to see that a witness's testimony is not misunderstood.

A trial judge should never assume the role of advocate, e.g., United States v. Gunter, 631 F.2d 583, 587 (8th Cir.1980), and must preserve an attitude of impartiality in the conduct of a trial. E.g., United States v. Woods, 696 F.2d 566, 571 (8th Cir.1982); United States v. Gavic, 520 F.2d 1346, 1354 (8th Cir.1975). It is also true, however, that a trial judge may question witnesses or comment on the evidence. A federal judge is more than a "mere moderator" or umpire in the proceedings and he may take an active role in conducting the trial and developing the evidence. See Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 1334-1335, 47 L.Ed.2d 592 (1976); United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975); United States v. Allsup, 566 F.2d 68, 72 (9th Cir.1977); Nordmann v. National Hotel Co., 425 F.2d 1103, 1109 (5th Cir.1970); Dranow v. United States, 307 F.2d 545, 572 (8th Cir.1962). In order to reverse on grounds of excessive judicial intervention, the record must either "disclose actual bias on the part of the trial judge [or] leave the reviewing court with an abiding impression that the judge's remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality." United States v. Singer, 687 F.2d 1135, 1141 n. 10 (8th Cir.1982), rev'd on rehearing, 710 F.2d 431 (8th Cir.1983).

While Transamerica alleges that it was interrupted numerous times during trial by questions and comments from the bench, only two episodes are advanced in its brief, both of which involve the testimony of State Fire Marshal Ralph Lindsay. In the first, Lindsay testified that the owner of a business or home is always "the prime suspect" in a criminal arson investigation. The district court inquired what investigation his department had made to establish Warner as the chief suspect. The judge then related to the jury his own experience with filing an insurance claim with regard to a house fire.

Initially, we believe that the judge's questions were permissible since they were designed to clarify the basis for the witness's broad statement. Moreover, the court's mention of his own fire by way of illustration does not appear to have prejudiced Transamerica. While such comments frequently are unnecessary and should be approached with caution, the court here clearly informed the jury of the purpose of his questions and, in response to Transamerica's objection, told the jury that he was well-treated by his insurer and did not intend to create any impression to the contrary.

The second incident alleged to require reversal concerns the court's inquiry of Lindsay about whether gasoline vapors are heavier or lighter than air. In the course of doing so, the court mentioned testimony given by another member of the State Fire Marshal's office in an earlier trial. Again, we do not see how these questions and remarks prejudiced Transamerica. Lindsay's answers...

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