Pacific Ins. Co. of New York v. Frank

• Decision Date: 28 January 1969
• Docket Number: No. 41520,41520
• Citation: 452 P.2d 794
• Parties: PACIFIC INSURANCE COMPANY OF NEW YORK, Plaintiff in Error, v. Myron E. FRANK, an individual d/b/a Frank's Department Store, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 794

452 P.2d 794

PACIFIC INSURANCE COMPANY OF NEW YORK, Plaintiff in Error, v. Myron E. FRANK, an individual d/b/a Frank's Department Store, Defendant in Error.

No. 41520.

Supreme Court of Oklahoma.

Jan. 28, 1969.

Rehearing Denied April 22, 1969.

Syllabus by the Court

1. As a general rule, a party cannot complain of the trial court's refusal to give a requested instruction that is not correct both in form and in substance so that it can be given to the jury without modification or omission.

2. Where gist of affirmative defense to action is alleged commission of arson, which constitutes a crime, and the trial court is tendered an instruction relating to and supporting the theory of the party upon which circumstantial evidence has been introduced, the trial court's failure to present the tendered theory in the instructions given is reversible error.

Appeal from District Court of Creek County; J. I. Pitchford, Judge.

Plaintiff recovered judgment for loss under fire insurance policy, as to which insurer asserted nonliability by reason of arson, and defendant appeals. Reversed and remanded with directions.

Loeffler & Allen, by Sam T. Allen, Bristow, for plaintiff in error.

Thomas A. Wallace, Sapulpa, for defendant in error.

BERRY, Vice Chief Justice.

Defendant in error, plaintiff below, brought an action to recover for loss under a fire insurance policy issued by plaintiff in error, hereafter referred to as defendant, or the insurer. Judgment was entered upon a jury verdict in favor of plaintiff and defendant appealed.

Plaintiff owned and operated a retail department store, located in a leased building in Sapulpa, Oklahoma. The furniture and store fixtures were insured for $15,000.00, under the policy involved. Early in the morning of April 14, 1963, (Easter Sunday) the property was destroyed by fire. Plaintiff notified defendant and furnished proof of loss, based upon plaintiff's valuation of the property. Defendant denied liability and suit was brought to recover the face amount of the policy. The petition alleged issuance and effectiveness of the policy, loss by fire and demand upon defendant, who refused to pay according to terms of the policy.

Defendant answered admitting allegations as to the fire and resulting loss, but denied value of the property and charged plaintiff knowingly overestimated values with intent to deceive defendant, for which reason no liability existed; further, defendant was not liable upon the policy because plaintiff either burned, or procured burning, of the property.

Plaintiff replied by general and special denial of all defenses alleged. The issues raised were tried to a jury, and a verdict was returned in plaintiff's favor for the policy value. The judgment entered upon this verdict provides the issues raised upon appeal.

The claim for reversal is advanced under six assignments or contentions. The matter hereafter discussed being dispositive of the cause, and since the case must be retried, we avoid mention of other alleged errors sought to be presented. Factual matters mentioned hereafter are sufficient to disclose the controlling issue.

Plaintiff's store occupied a leased building under a ten year lease which would have expired July 1, 1963. A renewal option clause required filing of written intent to renew within 90 days prior to expiration, but plaintiff had not filed same. There was evidence the store had lost money during two years prior to the fire, although part of this was a book value loss for tax purposes. During the pre-Easter season plaintiff neither planned nor advertised an Easter sale. Plaintiff left the store the afternoon preceding the fire and went to an oil lease in Okmulgee County, then to his home in Tulsa where he remained until about midnight. The regular employees closed the store about 6:30 that evening.

After midnight plaintiff left home to check producing oil leases near Beggs, in Okmulgee County. Plaintiff checked the wells, pumping equipment and tanks on four separate leases and, according to his testimony, then drove to Sapulpa to secure a geological map. After securing the map plaintiff left the store and started towards his car, which had been parked a block south and half block east of the store. Before reaching the car plaintiff became concerned whether store door had been locked and returned to the store to check this. On neither trip did plaintiff notice smoke, odor, burning, or anything amiss. Walking back to the car plaintiff came abreast of a patrol car and was identified and spoken to by the police officer. Plaintiff then drove to his Tulsa store, and then home and to bed without knowledge anything had occurred until arriving back at the store next morning while fire still was burning.

The officer above mentioned, who spoke to and identified plaintiff, was patroling three blocks away from the meeting point with plaintiff when an explosion was heard. The officer drove a block and a half east and heard a second explosion whereupon he turned the car around and saw the building front was blown out and smoke coming from the store. A test drive in daytime traffic required two minutes and twenty seconds from the point where the officer heard the first explosion. Investigation by arson experts assertedly ascertained the presence of highly flammable liquids in the area where the fire started. Although plaintiff testified no flammable materials were kept in the store, the evidence eventually showed there were containers of unused paint in the building, which plaintiff had used at different times.

Defendant's principal contention involves the trial court's refusal to give a requested instruction defining circumstantial evidence, advising the jury this was evidence which could be inferred from proven facts and, if the fire was found to be of incendiary origin and plaintiff was found to have motive and capability of setting the fire, which could be inferred from proven circumstances, a presumption arose plaintiff did in fact set the fire and he was required to rebut such presumption. It is unnecessary to consider the argument advanced in support of this instruction. The requested instruction admittedly expresses the law of...