769 S.W.2d 954 (Tex.App. - Texarkana 1989), 9688, First Southwest Lloyds Ins. Co. v. MacDowell

Docket Nº:9688.
Citation:769 S.W.2d 954
Party Name:FIRST SOUTHWEST LLOYDS INSURANCE COMPANY, Appellant, v. James MacDOWELL and Pauline MacDowell, d/b/a Armstrong McCall Beauty Supply, Appellees.
Case Date:April 11, 1989
Court:Court of Appeals of Texas
 
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Page 954

769 S.W.2d 954 (Tex.App. —Texarkana 1989)

FIRST SOUTHWEST LLOYDS INSURANCE COMPANY, Appellant,

v.

James MacDOWELL and Pauline MacDowell, d/b/a Armstrong

McCall Beauty Supply, Appellees.

No. 9688.

Court of Appeals of Texas, Sixth District, Texarkana

April 11, 1989

Page 955

Rehearing Denied May 9, 1989.

Page 956

Cynthia L. Stagner, Stagner & Stagner, Sherman, for appellant.

Webb Biard, Rick Standifer, Paris, for appellees.

BLEIL, Justice.

First Southwest Lloyds Insurance Company appeals an adverse judgment on the verdict in a suit filed by James and Pauline MacDowell on a fire insurance policy. The MacDowells sued First Southwest to collect on their policy when it refused their claim, alleging arson. First Southwest contends that the trial court erred in excluding evidence of an earlier fire on other property owned by the MacDowells, and that because the MacDowells failed to secure jury findings regarding the proof of loss requirement, they are precluded from recovery on the policy. We resolve these contentions in favor of the MacDowells and affirm.

On December 22, 1985, fire destroyed the Armstrong-McCall Beauty Supply Company in Paris, which was located in a building leased to the MacDowells. First Southwest insured the contents. Kenneth Bitting, a licensed engineer and certified arson investigator employed by First Southwest, investigated the fire and concluded that it was incendiary in nature. Rick Evans, the City of Paris fire marshal, agreed with Bitting that the fire was set and testified that, in his opinion, the MacDowells had set the fire. The MacDowells' arson expert, Jerry Gilmore, disagreed, and testified to three possible causes of the fire: an electrical mishap in the central heating room, a defect in the central heating unit, or an improper storage of combustible materials in the heating closet.

First Southwest contends that the trial court erred in refusing to admit evidence of a fire at the MacDowells' rental property in Fort Worth, which occurred eight months before the fire at their beauty supply business. First Southwest sought to establish the incendiary nature of the Fort Worth fire and the MacDowells' connection to that fire. The trial court excluded this evidence. Generally, evidence of other wrongs or acts is not admissible to prove the character of a person to show that he acted in conformity therewith on a particular occasion. Tex.R.Civ.Evid. 404(a). Prior acts or transactions by one of the parties with other persons are irrelevant, immaterial and highly prejudicial. Tex. Farm Bur. Mut. Ins. Co. v. Baker, 596 S.W.2d 639, 643 (Tex.Civ.App.-Tyler 1980, writ ref'd n.r.e.). Evidence of other wrongs or acts may be admissible, however, to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R.Civ.Evid. 404(b). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Civ.Evid. 403.

In its offer of proof, First Southwest produced M.J. Standridge of the City of Fort Worth fire department, who testified that he believed the Fort Worth fire to be incendiary, giving the following bases: 1) a certain type of pipe used in the plumbing, ordinarily flame resistant, was obliterated, suggesting that a flammable liquid had been poured down the drain; 2) there was no reason to believe that the fire was electrical in origin because the house was vacant and the electricity was off; and 3) the physical evidence suggested many points of origin of the fire. The evidence linking the MacDowells to the fire at their Fort Worth property consists of statements made to

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Standridge by the...

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