Gardner v. Wilkinson

• Decision Date: 27 April 1981
• Docket Number: No. 80-3075,80-3075
• Parties: Mrs. Winnie GARDNER, Plaintiff, v. Oscar F. WILKINSON, Defendant-Appellee, Cross-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant, Cross-Appellee. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1135

643 F.2d 1135

Mrs. Winnie GARDNER, Plaintiff, v. Oscar F. WILKINSON, Defendant-Appellee, Cross-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant,

Cross-Appellee.

No. 80-3075.

United States Court of Appeals, Fifth Circuit.

Unit A

April 27, 1981.

Rehearing Denied May 21, 1981.

Bryan, Nelson, Allen, Schroeder & Cobb, Harry R. Allen, Gail A. Crowell, Gulfport, Miss., for defendant-appellant, cross-appellee.

Larry E. Clark, Taylorsville, Miss., Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, Miss., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GOLDBERG, AINSWORTH and RUBIN, Circuit Judges.

AINSWORTH, Circuit Judge:

In this Mississippi diversity action, the appellee, Oscar Wilkinson, sued appellant State Farm Fire and Casualty Company to collect the proceeds of a homeowner's insurance policy after the insured house was destroyed by fire. ¹ State Farm denied Wilkinson's claim, alleging that Wilkinson intentionally set fire to the house himself and that the insurance policy was void because of several material misrepresentations Wilkinson made when he applied for the insurance. The jury returned a verdict in favor of Wilkinson in the amount of $38,233.90. State Farm raises several issues on appeal and Wilkinson, as cross-appellant, raises additional issues. We hold that the district court's instructions to the jury were contradictory and incorrect and therefore remand for a new trial. Thus we do not discuss the other issues presented by State Farm and Wilkinson.

The operative facts of this case are quite simple. ² On February 27, 1978, Oscar Wilkinson took out a homeowner's insurance policy with State Farm covering a house located in Raleigh, Mississippi. The policy provided $29,000 coverage for the house itself, $14,500 for its contents, and $2,900 for temporary living expenses. On September 25, 1978, a fire completely destroyed the home and its contents. State Farm denied Wilkinson's claim under the policy, however, for several reasons, including its contention that Wilkinson committed arson and set the fire himself.

Although there were no witnesses to the setting of the fire, State Farm presented circumstantial evidence at trial in an attempt to show that the fire was of an incendiary origin and that Wilkinson had both a motive and the opportunity to set the fire. Wilkinson denied setting the fire and offered expert testimony to counter State Farm's contention that the fire was intentionally set.

After the parties concluded their presentations, the district court read lengthy instructions to the jury on several issues including State Farm's burden of proof as to its allegation that Wilkinson intentionally burned the home. ³ Unfortunately, those instructions were contradictory. At one point, the court instructed the jurors that if they "are satisfied by a preponderance of the evidence that the defendant, Oscar Wilkinson, did wilfully cause said property to be destroyed by fire, then it would be your sworn duty to return a verdict for the defendant, State Farm Fire and Casualty Company." (T. 513-14) At another point, however, the judge told the jury that "(i)f you find from clear and convincing evidence in this case that Oscar Wilkinson wilfully caused the burning of the subject property, then in that event it would be your sworn duty to return a verdict for the defendant State Farm Fire and Casualty Company." (T. 513) Thus, the court instructed the jury to use two different standards. ⁴ The court later informed the jury that "(c)lear and convincing evidence must be evidence which is more convincing than that required in a civil case, which is a mere preponderance of the evidence." (T. 521) The jury therefore could not have resolved its dilemma by concluding that the two standards were equal. The district court was correct in instructing the jury that there is a distinct difference between the two standards of proof. Preponderance of the evidence in Mississippi, as elsewhere, simply means that evidence which shows that the fact to be proved is more probable than not. See, e. g., Gregory v. Williams, 203 Miss. 455, 35 So.2d 451 (1948); Braud v. Kinchen, 310 So.2d 657 (La.App.1975). Courts have more difficulty precisely defining "clear and convincing evidence," but they define the standard as requiring greater certainty than the preponderance of the evidence standard although perhaps less than the reasonable doubt standard. See, e. g., Aponaug Manufacturing Co. v. Collins, 207 Miss. 460, 42 So.2d 431 (1949); Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976); Hobson v. Eaton, 399 F.2d 781 (6th Cir. 1968).

The possible application of the wrong standard of proof may not warrant reversal if the misapplication would not harm the losing party, however. Although there are no Mississippi state court cases which establish the proper standard of proof in a case such as this one, a panel of...