Garrett v. Standard Fire Ins. Co. of Hartford, Conn.

• Decision Date: 29 July 1976
• Docket Number: No. 7840,7840
• Citation: 541 S.W.2d 635
• Parties: Charles D. GARRETT, d/b/a Charlie's Drive-Through, Appellant, v. STANDARD FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellee.
• Court: Texas Court of Appeals

Page 635

541 S.W.2d 635

Charles D. GARRETT, d/b/a Charlie's Drive-Through, Appellant, v. STANDARD FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellee.

No. 7840.

Court of Civil Appeals of Texas Beaumont.

July 29, 1976.

Rehearing Denied Aug. 19, 1976.

James W. Mehaffy, Jr., Beaumont, for appellant.

Dale Dowell, Beaumont, Osborne J. Dykes, III, Houston, for appellee.

KEITH, Justice.

Plaintiff below appeals from an adverse judgment rendered in his suit to recover on a policy of fire insurance. The defendant insurer interposed several policy defenses including arson and the jury verdict was adverse to the contentions of the plaintiff. The judgment followed the verdict, and this appeal has been perfected from the order overruling plaintiff's amended motion for new trial.

Garrett had been operating Charlie's Drive-Through cafe or restaurant in West Orange for some time before it was destroyed by fire during the early morning hours of February 28, 1973. We will have occasion to summarize the evidence in connection with a discussion of plaintiff's first two points of error. At this time, we summarize the jury findings in the margin. ¹

Points one and two, ² reproduced in the margin, complain of the admission of certain testimony from defendant's witness, Troy Standley, an arson investigator. Standley qualified as an expert witness on the subject of fires of incendiary origin, having had more than ten years' experience in this specialized field. He testified that he made an exhaustive investigation a few weeks after the fire and determined that the fire was of incendiary origin. He fixed the point of origin of the fire to be under a sink against the back wall of the restaurant building; he eliminated as possible sources of the fire the normal hazards, including electrical fuseboxes, wiring, the hot water heater, compressors and condensers, etc.

It was shown by other testimony that plaintiff drastically increased the insurance coverage on the building about a month before the fire. Insurance agent Boehme wrote the coverage from the time plaintiff acquired the building in 1970 until December of 1972. In 1971, plaintiff insured the building for $2,500, with $6,600 on the contents; in 1972, the coverages were increased to $7,500 and $10,000, respectively, but all of the coverage (except one policy for $2,500 on the building) lapsed on December 8, 1972. On January 8, 1973, after the building had been almost completely uninsured for a month, plaintiff sought out another insurance agent, Thomas Sorrels, to write the insurance. This time he sought coverage: on the building, $25,000; on the contents, $15,000; and for earnings (which he had never carried before), $8,000. He told Sorrels that there was no mortgage upon the building and the policy was issued with no mortgagee shown as a loss payee. In truth and in fact, the building had substantial first and second mortgages.

Further, it was shown that plaintiff was under severe financial strain. He showed a business loss of $4,461 during the calendar year 1972 upon his income tax return, although his bookkeeper's records showed the loss to be $2,829. According to these private records, the total profit for the fourteen months preceding the fire was less than $200.

Plaintiff had been in ill health before the fire; he had trouble keeping a good manager; three of his suppliers had sued him on unpaid bills; both the state and federal governments had filed tax liens against his property; he was two months delinquent in his mortgage payments on a Beaumont operation and the holder of the mortgage was exerting pressure to make the payments current; he was almost two months delinquent upon his first mortgage payments on the premises which burned; he was behind on the second lien payments in excess of $5,000.

The fire occurred early on a Tuesday morning, February 28, 1973. Plaintiff had closed the place without any definite plans for reopening on the preceding Sunday night, February 26, when he laid off the last two employees and removed the cash register and the soft drink machine.

Standley testified to his investigation and, in doing so, admitted that he had talked with firefighters who were present while the building was burning, one or more of plaintiff's former employees, the plaintiff himself, and others. Upon cross-examination, he was forced to admit that, at least in part, his opinion that appellant had started the fire was based upon hearsay. Plaintiff now contends that he is entitled to a reversal because of such admission by Standley. We disagree and overrule the first two points.

The leading case in this state is Bryant v. Trinity Universal Insurance Company, 411 S.W.2d 945, 951--953 (Tex.Civ.App.--Dallas 1967, writ ref'd n.r.e.), where the authorities are discussed in detail. We adopt as ours this language from the opinion:

'We are unwilling to hold that the testimony of an expert witness, whose opinion is based largely on facts actually known to him or proved to be true, is automatically rendered valueless and inadmissible merely because in the course of his investigation he heard someone make a casual hearsay statement which perhaps had some slight part in the formation of his opinion.' (411 S.W.2d at 952)

'It is our view that the admissibility of such expert testimony should be left to the sound discretion of the trial judge and that his decision should not be disturbed unless it be shown that he has abused that discretion. . . . No abuse of discretion was shown in this case, and we therefore hold that there was no error in admitting this witness' expert opinion as to the origin of the fire.' (Id. at 953)

The Supreme Court, discussing the foundation of the opinion testimony of an expert witness in Lewis v. Southmore Savings Association, 480 S.W.2d 180, 186--187 (Tex.1972), cited Bryant twice. The rule laid down in Bryant has received wide acceptance; see, e.g., Cisneros v. New Hampshire Insurance Company, 475 S.W.2d 351, 355 (Tex.Civ.App.--Corpus Christi 1971, no writ); Bell Aerospace Corporation v. Anderson, 478 S.W.2d 191, 198 (Tex.Civ.App.--El Paso 1972, writ ref'd n.r.e.).

See also, Payne v. Hartford Fire Insurance Company, 409 S.W.2d 591, 600 (Tex.Civ.App.--Beaumont 1966, writ ref'd n.r.e.); ³ Annotation, 'Cause of Fire--Opinion Evidence,' 88 A.L.R.2d 230 (1963).

There was no direct eyewitness testimony supporting the jury findings that the appellant caused the fire to start in his building for the purpose of collecting the proceeds of the insurance policy now in suit. However, the careful trial court instructed the jury upon the law of circumstantial evidence and the charge comes to us without objection. It has long been the law in this state that arson may be established by circumstantial evidence. See Joy v. Liverpool, London & Globe Ins. Co., 32 Tex.Civ.App. 433, 74 S.W. 822, 825 (San Antonio 1903, writ ref'd), wherein the court held:

'In the proof of an issue of such a character as arson, involving, as it does, such moral turpitude and criminal intent, every circumstance tending to prove the guilt of the party...