Payne v. Hartford Fire Ins. Co., 6807

• Decision Date: 03 November 1966
• Docket Number: No. 6807,6807
• Citation: 409 S.W.2d 591
• Parties: Eugene PAYNE, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 591

409 S.W.2d 591

Eugene PAYNE, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Appellee.

No. 6807.

Court of Civil Appeals of Texas.

Beaumont.

Nov. 3, 1966.

H. P. Wright, Port Neches, for appellant.

O. J. Weber, Keith, Mehaffey & Weber, Beaumont, for appellee.

PARKER, Justice.

Eugene Payne sued Hartford Fire Insurance Company to recover the proceeds of a fire insurance policy. The jury's finding to the sole issue was:

'Special Issue No. 1

'Do you find from a preponderance of the evidence that Eugene Payne intentionally procured the burning of his house on August 1, 1962, for the purpose of collecting insurance?

'Answer 'We do' or 'We do not'.

'Answer: We do.'

Upon the jury verdict, judgment was rendered that Payne take nothing. The parties will be designated by name or as in the trial court.

Plaintiff asserts error on the part of the trial court in overruling plaintiff's special exception to Paragraph 6 of defendant's second amended original answer. In such answer, defendant pleaded that the plaintiff was not entitled to recover because the fire which destroyed his building and contents was not accidental, but instead was a fire started either by the plaintiff himself or by his agent, or one acting under his direction and at his request, thus pleading the defense of arson. Supplementing this, defendant pleaded in Paragraph 6:

'For further and special answer herein, if such be necessary, defendant would show that plaintiff has had a number of other fires occur to other property that he owns at other times and other places, and that proof of these other fires under the circumstances under which they occurred tie in with and go to show intent, identity and system with respect to the fire which is alleged to be the basis of the loss upon which this suit is brought.'

Plaintiff's special exception to such paragraph was:

'Plaintiff specially excepts to Paragraph No. 6 of defendant's second amended original answer, (then quotes the paragraph set out above), because:

(a) The matters alleged are completely immaterial and irrelevant to any issue in this cause and unless stricken will serve only to bring prejudice to bear upon the plaintiff in this case.

(b) This is an attempt to prove arson in the present case by showing that plaintiff had had other fires and there is no allegation or can there be that the prior fires were fraudulent.

(c) These allegations fail to specifically set out any particulars with regards to the alleged prior fires; they do not give the time, location, or any other particulars about the circumstances surrounding the same so that it is impossible for the Court to determine any probative value they might have, which they could not have in any event.

(d) Allegations of this nature cannot help but to bring prejudice to bear upon the plaintiff and unless there are allegations that the prior fires were fraudulent and the result of a criminal act, then any possible probative value is so greatly outweighed by the prejudicial harm that will be brought to bear that they should be stricken from the pleadings.

Of which special exception plaintiff prays judgment of the Court.'

This exception of plaintiff's was overruled by the trial court. On the same day such exception was filed, plaintiff filed a motion in limine stating 'that he had had several fires prior to the fire loss made the basis of this suit, but would show they are completely immaterial and irrelevant to any issues in this case.' So, plaintiff and his counsel knew of the fires to which the defendant was referring. At the trial, plaintiff testified as to his prior fires, did not claim surprise, withdraw his announcement of ready or request continuance of the case. The general rule is that prior transactions are irrelevant, immaterial and highly prejudicial and in violation of the well settled general rule that res inter alios acts are incompetent evidence, particularly in a civil case. The exception to such said general rule is that wherever a prior plan, scheme, system, intent or design becomes relevant in a civil case, evidence may be offered to establish such prior plan, scheme, system or design, which included the doing of the act charged as a part of its consummation. Texas-Osage Co-operative Royalty Pool, Inc. v. Cruze, 191 S.W.2d 47 (Tex.Civ.App.1945, n.w.h.); 2 Wigmore on Evidence § 354:

'* * * Where the act itself is conceded or otherwise proved, and the object is to negative inadvertence or accident, the recurrence of similar acts of firing by the defendant tends to diminish the possibility of an innocent explanation. Moreover, the principle of Anonymous Intent (ante, sec. 303) is recognized as being here occasionally of peculiar utility; i.e. the recurrence of a similar fire may tend decidedly to negative innocent intent, even though the author of the other fires is not shown; thus, the prosecution having negatived innocent intent in the present fire by whomsoever set, the defendant may be shown to have kindled it.'

Defendant's pleading does not detail the particular circumstances of the prior fires that tie in with and go to show intent, identity and system with respect to the fire upon which the instant suit is based. Paragraph (c) of plaintiff's exception goes directly to this point of generality. Each of the previous fires destroying plaintiff's houses occurred in the early morning when he and his family were absent subsequent to the removal of some of the personal effects of substantial value from each house, except one in which they never lived with each such fire and the fire under consideration occurring at a time when the plaintiff was in dire financial circumstances. In each previous instance he collected substantial money under a fire insurance policy. All of such circumstances were well known to the plaintiff. Plaintiff in no manner, except by this exception to the pleadings, availed himself of the discovery processes under T.R.C.P. such as deposition, request for admission, etc., by which the detailed facts in question could have been ascertained, if unknown to plaintiff. That the plaintiff knew all such circumstances is supported by his own testimony as to his prior losses of buildings by fire and collection of fire loss from insurance companies.

There is no showing that defendant's pleading contained in Paragraph 6 caused the rendition of an improper judgment, and this point of error is overruled. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331 (S.Ct.1963); Rule 434, Texas Rules of Civil Procedure.

The trial court overruled plaintiff's motion in limine above referred to in which such motion is quoted in part:

'1. Plaintiff admits that he has had several fires prior to the fire loss made the basis of this suit, but would show that they are completely immaterial and irrelevant to any issue in this case. That to mention them in this cause would serve the sole purpose of bringing prejudice to bear upon the Plaintiff and would not aid nor be proper in the determination of any material issues in this case.

'WHEREFORE, premises considered, Plaintiff moves in advance that the Court instruct counsel for the Defendant, its witnesses and the Defendant not to refer nor elicit the above matters in any way and that such matters and evidence be stricken from the evidence in this cause prior to trial.'

The evidence ties in the prior fires and their recurrence not only to negative innocent intent on the part of Payne but show by circumstantial evidence a scheme, system, intent or design which the jury in this civil case could find to exist. Such motion in limine was properly overruled by the trial court.

Plaintiff's point of error contending that the trial court erred in admitting testimony concerning prior fires destroying plaintiff's property covered by insurance is overruled.

Under his first point the appellant complains that there was 'no evidence' and insufficient evidence to support the jury's answer to the sole issue presented to it for consideration. Plaintiff did not take any of the following procedural steps in the trial court: (a) motion for instructed verdict; (b) objection to the submission to the jury of such issue; (c) motion for judgment notwithstanding the jury's verdict; and (d) motion to disregard the jury's answer to such special issue. Since none of these procedural steps were taken by the plaintiff, his 'no evidence' points cannot be considered on this appeal. In considering the insufficient evidence points all of the evidence is to be considered in determining whether the evidence is sufficient to support the jury's finding to the sole issue in the case. A charge of fraud in a civil action, even though it involves the charge that a crime had been committed, as in this case, does not have to be sustained by evidence beyond a reasonable doubt as in a criminal prosecution. The presumption of innocence must be indulged. The burden was on the defendant to sustain its defense of arson by a preponderance of the evidence. The issue submitted to the jury was so framed. The presumption is against the loss by fire having been caused by the insured's own wilful or intentional act. Arson may be established by circumstantial evidence.

Eugene Payne began building a frame dwelling house three miles north of Silsbee in 1959. The house was not completely finished at the time of the fire; the outside brick had not been laid; some of the inside panelling was not up. The brick was on the ground. Until a few months prior to the fire it had been occupied as his home. Defendant issued a Texas standard homeowner's policy on such house for a period of 3 years providing for $20,000 coverage on the house, $8,000 coverage for unscheduled personal property within the house and $4,000 coverage for additional living expense for the insured in the event of loss. The house and its contents were destroyed by fire on August 1, 1962 while the policy was in full force. The actual cash value of the personal...