McCreery v. Continental Ins. Co.

• Decision Date: 06 April 1990
• Docket Number: No. 16298,16298
• Citation: 788 S.W.2d 307
• Parties: Philip W. McCREERY, Plaintiff-Appellant, v. CONTINENTAL INSURANCE COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 307

788 S.W.2d 307

Philip W. McCREERY, Plaintiff-Appellant, v. CONTINENTAL INSURANCE COMPANY, Defendant-Respondent.

No. 16298.

Missouri Court of Appeals,

Southern District,

Division Two.

April 6, 1990.

Motion for Rehearing or to Transfer

Denied April 26, 1990.

Brian P. Taylor, Bruce Taylor, Taylor & Taylor, Neosho, for plaintiff-appellant.

Jon Dermott, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.

FLANIGAN, Presiding Judge.

Plaintiff Philip McCreery brought this action to recover under the fire insurance provisions of a policy issued to him by defendant Continental Insurance Company. McCreery's losses stemmed from a fire which occurred on November 29, 1987, and destroyed his residence in rural Newton County and most of its contents. The petition sought $102,600 for loss of the house and its contents, loss of trees and shrubs, the expense of debris removal, and "loss of use." The petition also sought penalties and attorneys' fees for the alleged vexatious refusal of Continental to pay the losses.

Continental's answer alleged that McCreery's losses were due to his conduct in causing or procuring the cause of the November 29 fire. The answer also pleaded that McCreery had violated certain policy provisions dealing with misrepresentation and intentional concealment of material facts.

A jury was waived and the action was tried to the court. Prior to the commencement of the one-day trial, defense counsel invoked Rule 73.01(a)(2), ¹ by requesting findings of fact and grounds for the decision. After both sides had presented evidence and rested, the court stated, "Due to all of the circumstantial evidence and all of the witness testimony in this case, I am compelled to the conclusion that the plaintiff has had some complicity in this arson. Accordingly I am going to rule the issues on the petition in favor of the defendant."

After that statement was made, colloquy ensued between the court and counsel. Defense counsel had earlier provided the court with a 7-page document containing 39 "findings of fact" and 6 "conclusions of law." The court stated, "I do adopt these proposed findings of fact and conclusions of law submitted by the plaintiff (sic) with some changes which I have stricken out and changed." The court then stated that he was amending findings 12, 20, 21, 29 and 32 in certain particulars, and entered judgment against McCreery and in favor of Continental. McCreery appeals.

In general, McCreery contends that the trial court erred: (a) in adopting certain findings of fact because they were not supported by the evidence; (b) in considering evidence concerning a "voice stress test" administered to McCreery during the investigation of the November 29 fire and in considering evidence of McCreery's refusal to take a lie detector test; and (c) in entering judgment for defendant in that when the matters complained of in (a) and (b) are eliminated, the remaining evidence is insufficient to show that McCreery "was somehow implicated in this fire loss." McCreery's brief says, "In this case we have clear evidence of arson and not much else."

In November 1987, two fires occurred at McCreery's residence. The first fire occurred on Sunday, November 22, but the damage was minor. The second fire, from which this action arose, occurred on the following Sunday, November 29. Evidence was introduced concerning both fires and their respective aftermaths.

McCreery testified that on Sunday, November 22, he left his home 5 miles west of Neosho to visit Wilbur LeMaster who lived 10 or 12 miles east of Neosho. LeMaster is the father of McCreery's deceased wife. McCreery testified that he arrived at LeMaster's house at 6 a.m. and returned to his own home around 8 or 8:30 a.m. When he opened his garage door he discovered smoke in the house. He ran to the home of his neighbor, Tom Powers, and told Mrs. Powers that his house was on fire. He asked her to call the fire department and the sheriff.

McCreery said that he had left his house unlocked. On the stove McCreery found a globe containing charcoal lighter. McCreery had kept the globe in the kitchen cabinet and his can of charcoal lighter had been kept in the garage. Some of the charcoal lighter was "missing." The first fire was not extensive and damage was confined to smoke damage.

McCreery testified that on November 29 he arose at 5:30 a.m., "shaved and washed," and left his home about 5:40 a.m. He stopped at a convenience store to have a cup of coffee and then drove to LeMaster's house where he spent 30 minutes. McCreery then went to his muffler shop in Neosho and checked the mail. Upon his return to his home, he "saw all the fire trucks." McCreery gave a recorded statement, on November 29, to Captain Dwayne Lasiter of the Neosho Fire Department.

On cross-examination, McCreery testified that he did not take "a change of pants" to the home of his girl friend Ramona Dilday between the first fire and the second fire. At the time of the second fire, his 1987 Cadillac and his 1987 pickup were at his muffler shop, and McCreery had driven an older pickup to see LeMaster.

McCreery admitted that in a sworn statement and in his deposition he had stated that he had not purchased gasoline at the Pump 'N Pantry, a convenience store "catty-cornered" from his shop in Neosho, "to take home in a container." According to McCreery, he locked his house before leaving it on the morning of the second fire and he alone had keys to the house.

McCreery testified that he had told Captain Lasiter that he visited LeMaster every Sunday in November 1987. There was testimony from LeMaster that McCreery visited him on Sunday, November 22, and Sunday, November 29, but did not do so on the preceding Sundays in November.

McCreery admitted that it was possible that he told Captain Lasiter immediately after the second fire that McCreery was "doing fine in his business." According to McCreery's income tax returns, McCreery had net business losses of $5,724 in 1985, $22,945 in 1986, and $44,906 in 1987.

McCreery's witness Richard Ebert, a claims adjuster who investigated the two fires on behalf of Continental, testified, on cross-examination, that McCreery underwent a voice stress test administered by the Miami, Oklahoma Police Department, and that the test "indicated some responsibility on the part of McCreery." He also testified that McCreery was asked to take a lie detector test and refused to do so.

Defense witnesses included Michael Goldsworthy, Bryce Toler, Herbert Schmidt, Darlene Bacon, William Ziers, Kelly Yates, Linda Frossard, Dwayne Lasiter, Pat Stuart and Ramona Dilday.

Michael Goldsworthy, a lieutenant in the Neosho Fire Department, testified that he investigated the first fire on November 22. "Something on the stove had broken and spilled. McCreery told us it was a globe off the back porch and showed us in the cabinet where he normally kept the globe. McCreery said he thought the globe contained some lighter fluid for a barbecue grill and showed us out in the garage where he kept his lighter fluid and told us approximately how much was missing. I thought it was a little strange. I don't know how much lighter fluid I use out of my barbecue from one time to another."

Goldsworthy also testified that the first fire "was arson." He said it was unusual for "the globe and the charcoal lighter to come from the premises. Normally if someone breaks in and tries to start a fire they will bring something with them. It is unusual for a person to come to premises he intends to burn without any apparatus to burn it."

Goldsworthy also testified that, in the presence of McCreery following the first fire, several firemen talked about the use of charcoal lighter instead of gasoline. They said that although charcoal lighter is flammable it is slow burning and they thought it was strange that somebody would set liquid on a stove and let it burn instead of just pouring gasoline in the hallways and lighting it. "Usually they want to use something that's fast."

Bryce Toler, a Newton County deputy sheriff, testified that he investigated both fires. He said that on November 22, according to McCreery, the house was locked when McCreery left. Toler found no signs of a forced entry. No car was in the attached garage. After the second fire, Toler testified that in a chest of drawers in the master bedroom they found a pair or two of socks, a pair of underwear, and a handkerchief. McCreery said he had last done his laundry two days earlier.

On November 29, at 6 or 6:10 a.m., Herbert Schmidt, a passing motorist, saw McCreery's house "engulfed" in flames. The fire was coming out the windows and the roof. Schmidt went to the house of the nearest neighbor and "beat on the door and made a lot of racket and woke them up." A man came to the door and "they made a telephone call."

Darlene Bacon testified that she lived the first house south of McCreery and that on November 29, at 6:10 or 6:15 a.m., someone knocked at the door and her husband answered it. There was shouting at the door and she called the fire department.

William Ziers, an investigator for the state fire marshal, investigated the second fire. He arrived at the scene at 8:45 a.m. on November 29, and talked with McCreery. Ziers testified that the fire was incendiary in origin, a fact which is conceded by both sides. He said that gasoline could have been used to set the fire. Ziers, who had investigated around 1,000 fires, testified that in his opinion it would take "from 30 minutes to two hours for a fire of this size, the burn pattern that I found, to burn through the roof." He said that two gallons of gas, and probably less, would be sufficient to cause the burn pattern.

Kelly Yates, an employee of the Pump 'N Pantry, testified that she told Captain Dwayne Lasiter of the Neosho Fire Department that one time prior to November 29, 1987, McCreery bought gasoline "in a can." She told Lasiter, "that's the only...