MFA Mut. Ins. Co. v. Pearrow
| Decision Date | 09 December 1968 |
| Docket Number | No. 5--4681,5--4681 |
| Citation | 434 S.W.2d 269,245 Ark. 795 |
| Parties | MFA MUTUAL INSURANCE CO., Appellant, v. Wesley C. PEARROW, Appellee. |
| Court | Arkansas Supreme Court |
Odell Pollard, Searcy, for appellant.
Lightle & Tedder, Searcy, for appellee.
The appellee, Wesley C. Pearrow, purchased a fire insurance policy from the appellant, MFA Mutual Insurance Company, under the terms of which, appellee's house and furniture were insured against loss by fire. The house was insured for $4,000 and the furniture for $2,000. Appellee's house and furniture were damaged by a fire and he made demand upon the appellant for the policy limits of $4,000 on the house and $2,000 on the furniture. Appellant refused payment and appellee brought suit in the White County Circuit Court for $6,000, plus statutory penalties and attorney's fees. The appellant defended on the ground that appellee had either burned his house, or had conspired with others to have it burned, and that the fire did not result in such total loss as to require payment of the face amount of the policy.
After hearing the evidence at the trial, the court instructed the jury that there was no substantial evidence upon which a finding of arson or conspiracy to commit arson could be based, and the case was submitted to the jury solely upon the question of extent of loss and how much appellee should recover from appellant. The jury returned a verdict in favor of the appellee for $4,000 for loss of the house and $1,000 for damage to the contents. A judgment was entered on the jury's verdict, and appellee was awarded an attorney's fee of $1,000 and a statutory penalty of $480.
Upon appeal to this court, appellant relies on the following points for reversal:
'The trial court committed error (a) in instructing the jury that there was no substantial evidence on which to base a finding that appellee had either burned his house or conspired with others to have it burned and (b) in refusing to give defendant's requested instructions No. 1 and No. 2, which instructions would have submitted these issues to the jury.
The trial court committed reversible error in permitting appellee to give hearsay testimony which was so prejudicial as to prevent appellant from obtaining a fair and impartial trial.
The trial court committed reversible error in allowing appellee to recover an attorney's fee and a statutory penalty when the jury's verdict was for less than the amount which appellee sought to recover.'
The appellant's defense of arson, or conspiracy to commit arson, was based on circumstantial evidence of a very unusual nature. The house involved was a vacant rent house facing east on the west side of the highway about one mile from the town of Bald Knob. Mr. and Mrs. Harrell lived across the highway from appellee's house and a Mr. Loucks lived about two hundred and fifty yards west of the house. Mr. Loucks' private road leaves the highway just north of the appellee's house and runs from the highway along the north side of appellee's house.
Mr. Loucks testified that between 1:00 p.m. and 2:00 p.m. on August 3, 1965, he had started to his home from Bald Knob and as he passed along the side of appellee's house, one Raymond Feagin whom he knew, and another man rushed from the rear door of the house into some drooping limbs of a weeping willow tree; that he saw the tree limbs shaking and thought the men were fighting. He drove on home and went to work on his tractor. About 5:00 p.m. he heard that there had been a fire in the appellee's house.
Mr. and Mrs. Harrell testified that as they were eating a late lunch between 1:00 and 2:00 p.m. on August 3, they saw appellee's definitely identified truck drive into the road beside his house and turn into the drive in the back of the house. It only stayed a very short time during which its horn sounded, then it left in a hurry as it had come. About thirty minutes later, the Harrells observed smoke coming from the Pearrow house. The city fire department extinguished the fire and found a five gallon oil can, the odor of gasoline about the premises and ample evidence that the fire was of incendiary origin. About midnight, members of the fire department extinguished another fire at the same house and this time they found sponges soaked in gasoline, or other flammable fluid, on the roof of the building and a strong odor of fuel oil or gasoline was about the premises, the same as detected on the afternoon of August 3.
Raymond Feagin and Ronald Anthony Turpin were convicted of arson on pleas of guilty in connection with the fire. Turpin was sentenced to five years in the penitentiary and Feagin was given a suspended sentence. They both testified at the trial. Turpin testified that he did not know the appellee, but that on the morning of August 3 he discussed burning the house with Feagin at a cafe across the street from a used car lot, and then Turpin testified as follows:
'Q. Did you have an opportunity to discuss the burning of the Pearrow home at any place or at any time other than the discussion at the bus stop cafe?
A. Yes.
Q. Where did the other conversation take place?
A. At the used car lot across the street.
Q. Whose used car lot?
A. Billy Ward's used car lot.
Q. Where, in that used car lot, did the conversation take place?
A. Raymond and I talked about it in the trailer.
Q. Whose trailer?
A. Billy's.
Q. What is that trailer used for?
A. I believe just a business office.
Q. Is that where he conducts his business?
A. Yes, sir.
Q. Was anybody else present when the conversations was had?
A. On one occasion.
Q. Who was present?
A. Only it was between he and I, not between me and Raymond.
Q. Who did you discuss it with? Not what was said.
A. I talked with Billy about it.
Q. Where did you talk to Billy about it?
A. In the trailer.
Q. What day did these conversations take place?
A. The same day I burned the house.
Q. How did you know where the house was?
A. Raymond took me and showed me the house.
Q. Had you ever been to the house before?
A. No, sir.
Q. Why were you going to burn it?
A. I was going to burn it for one hundred dollars. I don't know what he was going to burn it for.
Q. Who was going to give you the hundred dollars?
A. Raymond.
Q. Did Billy know it?
A. There was no way he could know it.'
According to this witness he and Feagin left the car lot in Feagin's automobile and drove by and saw the house. They then returned to the cafe and talked about it some more and then went to Billy Ward's used car lot and obtained a five gallon gas can from behind the trailer. Turpin then drove Feagin's automobile to a gas station, had the can filled with gasoline, then returned and picked Feagin up and they both drove out to appellee's house in Feagin's black and white Buick automobile. According to this witness, they arrived at the appellee's house with the gasoline about 1:30 or 2:00 p.m. They saturated the rugs and walls of the building with gasoline. The electricity had been turned off in the house, but the pilot light to the hot water tank had been left burning and an explosion occurred, blowing out one window of the house and blowing the witness into another room of the house. He says that he had to fight with Feagin to get him out of the house, that Feagin was on fire and that he extinguished the fire on Feagin out in the back yard. They then drove back to town. They then drove back to the house and saw that it had not burned.
'A. * * * I know we drove back and saw we hadn't accomplished anything and he said he was through with it.
Q. You and he drove back that afternoon?
A. Yes, sir, I had enough beers in me that I decided I would finish the job.
Q. Raymond had enough after the first trip?
A. Yes, sir.
Q. When did you go back out there?
A. I guess about ten o'clock at night, I thought it was earlier, but everybody said it burned later that night.
Q. What did you do about burning it the second time?
A. I had bought a bunch of sponges at Vaughan's Super Market and I saturated them and threw them on top of the house and I let the gas run down the walls and set the blaze from the side of the house and it went up in flame.'
This witness testified that he had never heard of the appellee. On recall he testified that he sent his wife to Feagin for the $100 Feagin had promised to pay him, but that Feagin had no money. He denied that he sent his wife to appellee for money and denied that he knew anything about his wife going to appellee for money.
Feagin testified that he had known appellee for a number of years but had not talked with him except to speak when passing. He says that he did not know that the appellee had a house where it was located; that Turpin told him that he had a score to settle with the Pearrows and requested him to drive Turpin out to appellee's house.
'A. He just asked me to drive him out there, that he had a score to settle with the Pearrows.
Q. What did you do?
A. I went out there, I didn't know this gas was in my car, and he jumped out and run in the house and I sat in the car a couple of minutes and I went to the door and about the time I got to the door the thing exploded.
Q. Where were you?
A. I just got to the door and Ron was back in the house.'
Feagin denied that he promised to pay Turpin anything, denied that Turpin tried to collect from him and testified that he later apologized to the appellee for the part he played in burning the house.
We are of the opinion that the trial court erred in instructing the jury that there was no substantial evidence on which to base a finding that appellee had either burned his house or conspired with others to have it burned. Appellee was not being prosecuted for burning his house. He was the plaintiff in a civil action to recover on an insurance policy and the preponderance of evidence rule applied.
In Meyers v. Hobbs, 195 Ark. 1026, 115 S.W.2d 880, this court said:
"The settled rule, which has been many times approved by this court, is that...
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