Bryant v. Trinity Universal Ins. Co., 16840

• Decision Date: 06 January 1967
• Docket Number: No. 16840,16840
• Citation: 411 S.W.2d 945
• Parties: Charles D. BRYANT, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY et al., Appellees. . Dallas
• Court: Texas Court of Appeals

Page 945

411 S.W.2d 945

Charles D. BRYANT, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY et al., Appellees.

No. 16840.

Court of Civil Appeals of Texas Dallas.

Jan. 6, 1967.

Rehearing Denied Feb. 10, 1967.

William F. Billings, of Fanning, Billings, Harper, Pierce & Gilley, Dallas, for appellant.

R. B. Cousins, of Thompson, Coe, Cousins & Irons, Dallas, for appellees.

BATEMAN, Justice.

The appellant Charles D. Bryant sought by this suit to recover of the appellees, a group of insurance companies, his loss by fire of the contents of a building in which he conducted the Golden Pheasant Restaurant. The companies' principal defense (and the only one involved on this appeal) was that the appellant himself had burned the property or caused it to be burned. By counterclaim the appellees sought to recover of appellant a substantial sum they had paid to certain holders of liens on the insured property. The jury gave a negative answer to Special Issue No. 18, inquiring as to whether they found from a preponderance of the evidence that appellant intentionally set fire to and burned the property; but in answer to Special Issue No. 19 they found that he did cause the fire to be intentionally set and to burn the restaurant. The jury also found the loss to be in the sum of $51,700. The court rendered judgment on the verdict, that appellant take nothing and that appellees recover on their counterclaim. We affirm.

By his first point of error on appeal the appellant asserts that the trial court erred in submitting Special Issue No. 19, 'as there was no evidence of probative value to support its submission.' In passing upon this 'no evidence' point we look only to that part of the record which is most favorable to appellees supporting the jury's finding and disregard entirely that which is opposed to it or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Greenfeld v. San Jacinto Ins. Co., Tex.Civ.App., 319 S.W.2d 134, 139, no wr. hist.; Jones v. Commercial Union Assurance Co., Tex.Civ.App., 405 S.W.2d 207, no writ hist. A summary of the evidence considered by us follows:

Appellant admitted that at the time of the fire he owed personal and business debts of more than forty thousand dollars. He acquired the Golden Pheasant Restaurant about the middle of 1962, and immediately began to lose money in its operation until October 1963. The fire occurred in February 1964.

There was evidence that the front door was the only entrance to the building and the restaurant, and appellant testified that Margaret Hill (the cashier), Joe Gayton, Ed Smart and he were the only four people who had keys to that door. There was also evidence accounting for the keys held by Mrs. Hill, Gayton and Smart the night of the fire. When the firemen arrived the door was locked.

Morton K. Smith had testified at the prior arson trial of appellant and, Smith having died in the meantime, his testimony was reproduced and admitted on the trial of this civil suit. This testimony was to the effect that Smith, a former employee of appellant at another restaurant, tried to borrow money from appellant in December 1963, that appellant told him he hadn't made any money since he had been there and didn't have a thousand dollars; that the witness asked him why he didn't sell out and close up, to which appellant replied that he had tried to sell the place but the only offer he had was ten per cent of his investment, and that he couldn't take that because he owed more than he would get out of it that way. Smith further testified that later that month he was with appellant who told him there was only one way for him to get out of the business, and that was by fire; that he was with appellant again within the first week of January 1964 when appellant told him that if he would come to the basement with him he would show him how he planned to start the fire; that they went to the basement, where the witness saw a food warmer hanging from a conduit six or seven feet above the floor; that appellant loosened the wire by which the food warmer was suspended and put it about three inches from some wood and asked Smith how long he thought it would take to catch fire, to which the witness replied that he didn't think it would ever catch fire; that they then went back upstairs, where the discussion continued as to the possibility of the fire and how it could be set, and appellant asked him if he knew of some other way that it could be done, and when the witness replied 'no' the appellant said, 'Would you consider setting this fire if I would give you one thousand dollars?' The witness said he told appellant that he thought he was 'nuts' and got up and walked out and never did go back.

Joe Gayton testified that he had worked for appellant as a cook approximately a year and a half; that in January 1964 appellant came in the kitchen and asked him what he thought about burning the place, to which the witness replied that it was his (appellant's) business and that he could do what he wanted to do with it; that a few days later appellant asked him what he thought about getting a professional to come 'to do it' and that the witness told him that if he (appellant) was going to burn the place he should do it himself. He also testified that when he went to work early on the morning of Saturday, the day before the fire, he smelled something burning and went to the basement and found a food warmer which was smoking, and he unplugged it and smothered out the fire, then went back upstairs and called appellant on the telephone.

C. W. Parish testified that such a food warmer would start a fire under the right circumstances.

There was also testimony that when the firemen arrived the fire had been burning about three and a half to four hours, and Fire Chief Emerson testified as an expert that in his opinion the fire was of incendiary origin.

There was testimony that appellant, while under arrest, stated to D. G. Dabbs, an investigator of the Dallas Fire Department, and to Allen Sweatt, a deputy sheriff, that he (appellant) was responsible for the fire. Sweatt said appellant made that statement in his presence three different times.

This evidence, though wholly circumstantial, was in our opinion quite sufficient to warrant the submission of Special Issue No. 19 and to support the jury's answer thereto. The probative value of that evidence outweighs the dangers incident to allowing verdicts to stand which are based entirely on circumstantial evidence. In balancing these intangible considerations, we must necessarily rely heavily on the wisdom and discretion of the trial judge, and unless it appears to us that the trial court has abused its discretion in this respect, we feel that its decision should not be disturbed. McCormick & Ray, Texas Law of Evidence, Vol. 2, § 1481, pp. 330--1. See also Stein v. Girard Ins. Co. of Philadelphia, Pa., 7 Cir., 259 F.2d 764, where importance is ascribed to the circumstance that all keys to the burned establishment were accounted for in the evidence but that of the owner.

The first point of error is overruled.

By his second point of error appellant asserts that the trial court erred in permitting the testimony of Morton K. Smith in the prior arson trial to be read to the jury. The general rule involved is thus stated in McCormick & Ray, Texas Law of Evidence, Vol. 1, § 941, pp. 719--20:

'The rule considered in this chapter is as follows: statements made in evidence upon a previous judicial proceeding may be received upon a subsequent trial as evidence of the truth of such statements where the witness who gave the evidence upon the former hearing is now dead or unavailable, provided the party against whom the evidence is now offered (or someone else claiming under the same right or title) had the opportunity to cross-examine the witness at the former trial upon the same issue as that upon which the evidence is now offered.'

So far as we can determine, our Texas courts have never passed on the question of whether, under the rule above stated, testimony given in a prior Criminal case is admissible in a subsequent Civil case involving substantially the same issues. The Supreme Courts of Illinois and Oklahoma, however, have written on it. In McInturff v. Ins. Co. of North America, 248 Ill. 92, 93 N.E. 369, it was held that such evidence was not admissible because the issue was not the same; that in a criminal case the issue was 'guilt' and in a civil case the issue was 'property'. We find ourselves unable to adopt that reasoning, but agree, rather, with the reasoning of the more recent decision of the Supreme Court of Oklahoma in Travelers Fire Ins. Co. v. Wright, Okl.Sup.Ct., 1958, 322 P.2d 417, 70 A.L.R.2d 1170, holding that such evidence was admissible. That was a suit on fire insurance policies, and it was held that to define the issues as 'guilt' and 'property' would be to determine the ultimate issue or result sought to be obtained by the litigation, whereas the 'issue' sought to be established by the witness was whether or not one of the plaintiffs had actually procured the burning of the building.

We hold that in this case the issue was substantially the same in both cases and that, since appellant was a party to both suits and had full opportunity to cross-examine the witness in the criminal trial, there was no error in admitting the testimony. We consider this ruling to be in harmony with the rules laid down by our Supreme Court in Boyd v. St. Louis Southwestern Ry. Co. of Texas, 101 Tex. 411, 108 S.W. 813; Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697; and Houston Fire & Casualty Ins. Co. v. Brittian, Tex.Sup., 1966, 402 S.W.2d 509. Appellant's second point of error is overruled.

Appellant's third point of error is fragmented into what are really five separate points of error, all complaining of rulings of the court with respect to the testimony of the witness Joe Gayton...