Imperial Cas. & Indem. Co. of Omaha, Neb. v. Terry, 467

• Decision Date: 26 February 1970
• Docket Number: No. 467,467
• Citation: 451 S.W.2d 303
• Parties: IMPERIAL CASUALTY AND INDEMNITY COMPANY OF OMAHA, NEBRASKA, Appellant, v. Ray TERRY, individually and doing business as Terry Brothers, Appellee.
• Court: Texas Court of Appeals

Page 303

451 S.W.2d 303

IMPERIAL CASUALTY AND INDEMNITY COMPANY OF OMAHA, NEBRASKA, Appellant, v. Ray TERRY, individually and doing business as Terry

Brothers, Appellee.

No. 467.

Court of Civil Appeals of Texas,

Tyler.

Feb. 26, 1970.

Rehearing Denied March 12, 1970.

Ramey, Brelsford, Flock, Devereux & Hutchins, Tracy Crawford, Mike A. Hatchell, Tyler, for appellant.

Joe Tunnell, Tyler, for appellee.

DUNAGAN, Chief Justice.

The appellee, Ray Terry, the owner of a trucking business known as Terry Brothers, brought this suit against his automobile insurer, Imperial Casualty and Indemnity Company of Omaha, Nebraska, to recover under the 'malicious mischief' provision (Coverage I) of a policy of insurance covering one of his trucks, the motor of which was damaged by some foreign substance in the lubrication system allegedly placed there maliciously and willfully by some unknown person.

The case was tried to a jury which returned a verdict in which it found that the damage to the truck was caused by 'malicious mischief' and not by 'wear and tear'.

On the basis of this verdict, judgment was rendered against Imperial in the amount of $1,615.43.

Appellant presented a motion for an instructed verdict at the close of appellee's case as well as when all parties rested. One of the grounds stated therein was that the evidence failed to raise a fact issue that the damages, if any, were caused by 'malicious mischief' as alleged in plaintiff-appellee's petition. Likewise, appellant objected to the court's charge for the same reason. Said motions and objection were by the court overruled.

This appeal has been duly and timely prosecuted from that judgment complaining principally of the (1) sufficiency of the evidence to support recovery under the policy, (2) sufficiency of the evidence to support the damages awarded, (3) trial court's refusal to submit requested issues, and (4) court's ruling on the exclusion or admission of certain evidence.

Appellant by its points of error 1 and 2, in substance asserts that there is no competent evidence or the evidence is insufficient to support the jury's answer to Special Issue No. 1 ¹.

In April, 1965, Imperial Casualty and Indemnity Company of Omaha, Nebraska, issued to Ray Terry, d/b/a Terry Brothers, its general automobile insurance policy covering the entire fleet of trucks used by the insured in his trucking business. The policy was in full force and effect at all times material to this lawsuit.

As part of its 'Combined Additional Coverage' (Coverage I), the policy insured against '* * * damage to the automobile * * * caused by * * * malicious mischief or vandalism * * *.'

Plaintiff brought this suit for damage allegedly caused by 'malicious mischief' only, deduced to have occurred because of the following circumstances.

The insured truck--a 1963 Diesel with 363,000 miles on it broke down near Casa Grande, Arizona, on a return trip to Texas, hauling a load of fresh lettuce. The truck was taken to Empire Machinery Company in Casa Grande where it was found that the engine had been substantially damaged by the presence of some foreign substance in the lubrication system.

Although there are no Texas cases dealing with the 'malicious mischief' provision of an automobile insurance policy, a substantial body of authority in other jurisdictions has established that malicious mischief is a wanton, intentional act committed with the fixed purpose to damage or destroy property. See Rich v. United Mutual Fire Insurance Co., 328 Mass. 133, 102 N.E.2d 431, (1951); Ducote v. United States Fidelity & Guaranty Co., 241 La . 677, 130 So.2d 649, 651, (1961); Nicholas v. New York Underwriters Insurance Co., 148 So.2d 830, 831, (La.App., 1963); Thomas v. Pennsylvania Fire Insurance Co., 163 So.2d 202, (La.App., 1964, writ ref., 246 La. 583, 165 So.2d 481).

Regardless of how careless, negligent or even illegal an act might be, it is not malicious mischief absent evidence that the act was motivated by malice towards the property or its owner, i.e., by fixed intent to cause injury to specific property. Rea v. Motors Inc. Corporation, 48 N.M. 9, 144 P.2d 676, 680, (1944); Eis v. Hawkeye-Security Insurance Co., 192 Kan. 103, 386 P.2d 206, 210, (1963); Cruse v. Government Employees Insurance Co., 391 S.W.2d 1, 3--4 (Mo.App., 1965); 7 Blashfield Automobile Law and Practice 546--547, 'Comprehensive Coverage', Section 313:18 (1966).

It is the insured's burden of proving the essential elements of malicious mischief. Lanza Enterprises, Inc. v. Continental Insurance Co., 142 So.2d 580, 581 (La.App., 1962). In the case of Rea v. Motors Ins. Corporation, supra, 144 P.2d at 680 we find this statement:

'Malice towards the owner of property injured is an essential element of 'malicious mischief', and in the absence of evidence of malice, actual, express, or implied, a motion for directed verdict should be sustained, * * *.

'In prosecution for malicious mischief, malice towards the owner of the property injured is the gravamen of the offense, without which it would be a mere trespass.' * * *'

It is not shown when the truck departed for Arizona or when it broke down. The driver of the insured truck did not testify on the trial of this case. Therefore, there is no testimony as to the activity in which the truck was engaged, where it had been or what conditions it had encountered before the breakdown. Consequently, there is no direct evidence as to how, when or over what period of time sand or any foreign substance got into the lubrication system, if it did, nor is there evidence of the particular circumstances surrounding any such occurrence, if it did happen.

If there is any evidence at all that sand or other foreign substance was deposited (1) by a human being (2) who was prompted by malice and intent to injure--both elements being necessary to plaintiff-appellee's cause of action--such evidence must come from appellee's testimony that the truck's oil was changed before its trip to Arizona; that, under normal operation, 'it would take years' to accumulate the substance found in the oil which he examined and inspected; and his conclusion that there was no way for the sand to get in there unless some one put it there.

The evidence adduced by appellee in support of his allegation that the breakdown of the truck in Arizona in February, 1966, because of damages to the engine thereof, which is the basis of this lawsuit, was caused by malicious mischief was from the testimony of the appellee himself. He was the only witness called to testify on behalf of the appellee. He testified that the oil in the truck was changed at the beginning of the trip to Arizona; that the oil in the truck was changed every 6,000 miles and that it had traveled approximately 1,800 miles after servicing before the breakdown in Arizona; that the truck was equipped with extra oil filters to insure that the oil would be clean; in his (appellee) opinion, by changing the oil every 6,000 miles 'it would take years' for the amount of sand found in the oil to accumulate and over appellant's objection he testified that: 'There was no way for it to get in there unless some one put it there'. He also testified that samples of the oil, oil filter and other parts were removed from the engine of the truck by the Empire Machinery Company in Casa Granda, Arizona, while in the process of making repairs thereto. The oil sample and parts so removed were sent by Empire Machinery Company to him by putting them on the truck upon its return to Texas after the repairs to the truck were made. They were delivered to the appellee in Dallas. He could not remember the date of delivery. The oil was in a bottle. Thereafter upon his examination of the oil sample he found therein a foreign substance which he believed to be sand. He further testified that the metal parts were 'Just like you had turned a sand-blasting machine on it.' He also testified that by rubbing the oil between your fingers you could feel sand; that you could see sand in the oil filter and on the parts; and that there were sediments in the bottom of the bottle .

When objects or articles can be brought into court and exhibited, it is more satisfactory than a description of them by witnesses that have inspected them outside of court. Hays v. Gainesville St. Ry. Co., 70 Tex. 602, 8 S.W. 491, (1888). However, the oil sample and the parts that were testified about by appellee were not offered into evidence because they were not available. Soon after appellee had received these articles in Dallas, he turned them over to an agent of appellant. While in appellant's possession, they were lost .

The person or persons who, while in the process of making repairs to the truck, removed the oil, oil filter and parts from the engine of the truck and therefore from personal knowledge were in position to account for what foreign substances, if any, were found in the oil, oil filter and on the parts, did not testify upon the trial of this case.

The crucial question to be depermined concerns whether the plaintiff-appellee has proved by competent evidence that the damages in question were caused by 'malicious mischief' so as to be within the coverage of a policy issued to him by the defendant-appellant. We do not believe he has done so.

There is a total absence of any competent evidence that any sand was found in the oil, oil filter or on the parts when they were disassembled and removed from the truck in Casa Grande, Arizona. We are aware of the testimony of the appellee that 'When they (Empire Machinery Company) got into the engine they found it full of sand.' The appellee did not make the trip to Arizona on the occasion in question and was not present or even in Casa Grande when the oil and parts were removed from the truck. Therefore, it is obvious that this testimony was based upon hearsay and was inadmissible. Panhandle & S.F. Ry. Co. v. Reynolds, 33 S.W.2d 249, 251, (Tex.Civ.App., Amarillo, 1930,...