Bufkin v. Texas Farm Bureau Mut. Ins. Co.

• Decision Date: 15 September 1983
• Docket Number: No. 12-82-0008-CV,12-82-0008-CV
• Parties: Frank BUFKIN, d/b/a Southern Egg Ranch, Appellant, v. TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 317

658 S.W.2d 317

Frank BUFKIN, d/b/a Southern Egg Ranch, Appellant, v. TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.

No. 12-82-0008-CV.

Court of Appeals of Texas Tyler.

Sept. 15, 1983.

Kenneth J. Walker, Ewing Adams, Adams & Sheppard, Longview, for appellant.

Mike Patterson, Grainger & Patterson, Tyler, for appellee.

SUMMERS, Chief Justice.

This is an appeal from a judgment denying appellant Bufkin damages in payment of an alleged insurance claim occasioned by the total destruction by fire of a building and its contents owned by appellant and insured by appellee insurance company. The case was tried to a jury with arson being the sole defensive issue and the jury found against Bufkin. The trial court overruled Bufkin's motion for judgment non obstante veredicto, entered judgment based on the jury's verdict in favor of appellee, and thereafter overruled Bufkin's motion for new trial. Bufkin perfects this appeal.

We affirm.

The record reflects that Bufkin had been in the poultry business for several years in East Texas. He owned and operated Southern Egg Ranch which had been in business since 1973. Most of the buildings on the egg ranch were insured at one time with Texas Farm Bureau Mutual Insurance Company, appellee herein. Around July 1978 appellant's ranch was closed down due to financial losses and Bufkin allowed the insurance coverage to lapse on all but a couple of the modern buildings. One of the buildings upon which insurance was maintained was the processing plant, the building destroyed by fire and made the subject of this lawsuit.

The facts as developed at trial indicate that on July 8, 1979, the day of the fire, appellant visited the egg ranch for the first time in several months. Bufkin, his son and three workers came to the ranch and cleaned out the area in compliance with the insurance company's requirement that the insured property be properly maintained. Since the shutdown of the egg operation the processing plant was used for storage purposes; however, the record reflects it was not overpacked and nothing was stored in the aisles of the building, nor were any flammables such as gasoline or kerosene stored in the processing plant. The electricity and gas had been disconnected for some time prior to July 8, 1979. During the day of the fire Bufkin was in and out of the building, and late in the afternoon, he directed his son and a couple of the workers to go to the back pasture and mend a fence. Bufkin and one of the workers remained in the area of the processing plant, before joining his son and the workers in the field. Shortly thereafter smoke was spotted by one of the workers, and the record reflects that Bufkin instructed the others to continue with the work in the field while he went by himself to check on the fire. By the time he got to the burning building the fire department had arrived, had used all of their water and the building was completely destroyed. Subsequently, Bufkin submitted his claim for his loss to the insurance company. Such claim was denied on the basis that the fire was not an accidental one.

At trial, the insurance company had one expert, William Lute, who had extensive experience in fire investigations. It was his opinion that the fire was not accidental, but was intentionally set based upon the amount of spalling and hydrocarbon tracks found throughout the building. His testimony showed that spalling is the breaking up of a concrete surface that occurs after a flammable liquid is poured on the surface and ignited.

The single special issue submitted, and the jury's answer thereto, was:

Do you find from a preponderance of the evidence that plaintiff, Frank Bufkin, on or about July 8, 1979, started or caused to be started a fire on the premises known as the Southern Egg Ranch, with intent to collect insurance proceeds?"

Answer "We do" or "We do not."

Answer: We do.

At the close of the evidence Bufkin moved for a directed verdict based on no evidence being offered by the appellee insurance company; said motion was overruled. Bufkin then attempted to offer further evidence in rebuttal and moved for a second directed verdict, which was overruled.

Appellant contends: in his first point that there was no evidence to support the jury's finding; in his third point that the trial court erred in failing to grant appellant's motion for directed verdict; and in his fourth point that the trial court erred in failing to grant appellant's motion for judgment non obstante veredicto. These points all assert a no-evidence challenge and must be sustained only if there is a complete absence, or no more than a scintilla, of evidence that Bufkin started the fire or caused the fire to be started for the purpose of collecting on his insurance policy. Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 191 (Tex.1980).

In reviewing no evidence points of error we must consider only the evidence and inferences tending to support the jury's finding of arson and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Travelers Insurance Co. v. Allen, 554 S.W.2d 808, 811 (Tex.Civ.App.--Tyler 1977, no writ). If the evidence is indirect or circumstantial, this fact does not prevent an ultimate fact or finding from being shown. Prudential Ins. Co. of America v. Krayer, 366 S.W.2d 779, 780 (Tex.1963). All that is required is that the circumstantial evidence be reasonably satisfactory and convincing proof from which a legal inference can be drawn. Texas Employers Insurance Association v. Clapper, 605 S.W.2d 938, 942 (Tex.Civ.App.--Houston [1st] 1980, no writ); Mobile Ins. v. Cone, 457 S.W.2d 175, 176 (Tex.Civ.App.--Tyler 1970, writ ref'd n.r.e.). Texas Farm Bureau's burden of proof of proving arson at trial was by a preponderance of the evidence, and did not require absolute certainty that the fire was set intentionally. See McMillen Feeds, Inc. of Texas v. Harlow, 405 S.W.2d 123, 130 (Tex.Civ.App.--Austin 1966, writ ref'd n.r.e.); State Farm Mutual Auto Ins. Co. v. Davis, 576 S.W.2d 920, 921 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.). It is only necessary that appellee prove that the circumstances point to the ultimate fact sought to be established with such a degree of certainty as to make the conclusion reasonably probable. State Farm, supra; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951).

Joe Anderson, the insurance agent for Texas Farm Bureau, testified that he had a conversation with Bufkin less than two weeks and perhaps just a few days before the fire. Anderson testified that he had noticed that the egg processing operation had been vacant since January 1979 and that he therefore notified Texas Farm Bureau not to renew the policy on the processing plant. When Bufkin was informed of such cancellation notice, he told Anderson that he was going to reopen the business with his son. The record reflects that prior to Anderson's testimony Bufkin had denied being told of the notice not to renew the insurance policy. He also denied that he told Anderson or anyone else that he planned to reopen the business. However, after Anderson's testimony at trial, Bufkin was recalled to the stand by his attorney and he admitted for the first time recalling the events as Anderson had related to the jury; however, he never admitted that he and his son had planned to reopen the business. It is evident that the jury could have easily inferred that Bufkin had intentionally misled Anderson into believing his egg ranch was not obsolete and vacant for the purpose of maintaining insurance. Moreover, it is interesting to note that at the time the smoke was spotted and Bufkin, his son and the workers were in the field, Bufkin instructed everyone to finish their work before joining him at the fire. Considering the unusual actions of Bufkin when others had noticed the fire and the quick and total destruction of the building, the jury could have easily inferred that Bufkin started or caused to be started the fire before returning to the pasture to join the others. In view of all the circumstances as developed at trial, it would have been almost impossible for anyone except Bufkin or someone at his direction to start the fire.

William Lute testified that he examined the remains of the fire eight days after its occurrence; that he had ruled out the possibility that an electrical fire, gas fire or the burning of a trash fire could have caused the building's destruction. His testimony was simply that the fire was an extremely fast burning one, and it was his opinion that the fire was not accidental and it was intentionally set. Such opinion was based on his experience and his personal observation at the scene. Specifically, he noted spalling and hydrocarbon tracks on the concrete floor evidencing that a flammable liquid had been poured on the floor's surface and ignited.

Bufkin argues that the case of Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856 (1950), is similar to the case at bar and urges that Massey supports his contentions that there is no evidence to sustain an arson finding. Massey, being a criminal case, is distinguishable from the case at bar because of the difference in the burden of proof required.

Our fact situation is similar to that found in Garrett v. Standard Fire Insurance Co., 541 S.W.2d 635 (Tex.Civ.App.--Beaumont 1976, writ ref'd, n.r.e.). In Garrett, the appellant questioned the sufficiency of the evidence which included the testimony of an arson investigator. In that case, as in the case at bar, there was evidence that the insured had incurred financial losses. Unlike Garrett, in our case there was direct evidence that the insured Bufkin was at the scene of the fire not only on the date that the fire took place but within the hour of its origin. In both Garrett and the case at bar the incendiary origin of fire was proved by an expert arson investigator without laboratory evidence corroborating his...